The former president had sought to deny the House January 6 Committee access to the logs.
The former president had sought to deny the House January 6 Committee access to the logs.
P resident Biden has directed the National Archives to make Trump White House visitor-log information available to the House January 6 Committee. The directive, which was expected and is consistent with a similar determination Biden previously made, contravenes former President Trump’s attempt to assert executive privilege in order to block disclosure of the logs to the Committee.
The New York Times reports that the White House issued Biden’s directive in a letter to national archivist David Ferriero yesterday, and planned to alert Trump’s lawyers today (though, not before the Times was given a look at the letter, as it acknowledges).
The Committee is focusing on the former president’s activities in the White House during the hours when the Capitol riot took place on January 6, 2021. More broadly, it is also examining other Trump team gambits to overturn the results of the 2020 election — the litigation challenging Biden’s victory in several states; the efforts to persuade Republican legislators and election officials in these disputed states to entertain unproven claims of fraud and adjust vote tabulations; the unsuccessful efforts to persuade Justice Department officials to induce disputed states to investigate these fraud claims; discussions about the possibility of causing federal officials to seize state voting machines so they could be examined for evidence of tampering; the scheme to have Republican officials in disputed states gin to up slates of Trump electors that could be offered as alternatives to state-certified slates of Biden electors; the efforts to persuade and browbeat then-vice president Mike Pence into refusing to count certified electoral votes from the disputed states at the January 6 joint session of Congress; and so on.
The Committee understandably believes that the visitor logs, in conjunction with other evidence it has gathered from interviewing well over 500 witnesses and perusing a wide array of audio/video exhibits and thousands of relevant documents, will shed light on these matters. The Times reports that Biden regards the congressional investigation as “urgent” and the Committee’s need for the logs as “compelling.” He has thus directed the National Archives to provide the logs to the Committee within the next 15 days. In rejecting Trump’s privilege claims, White House Counsel Dana Remus explained, Biden concluded that “constitutional protections of executive privilege should not be used to shield, from Congress or the public, information that reflects a clear and apparent effort to subvert the Constitution itself.”
Since only the sitting president wields the Constitution’s executive power, one would think that only the sitting president could assert executive privilege. Yet a Supreme Court decision involving the disposition of President Nixon’s White House records in the wake of the Watergate scandal — Nixon v. Administrator (1977) — opined that former presidents maintain some undetermined quantum of executive privilege covering materials from their own administrations, which may theoretically be asserted over the sitting president’s objection. This dubious suggestion no doubt owes to tradition: Historically, presidential materials were presumed to be the property of the president whose administration generated them. Following Watergate, Congress enacted the Presidential Records Act to clarify that the records belong to the public.
While the courts have not formally abandoned Nixon v. Administrator in this regard, they have circumvented it by giving broad deference to the sitting president’s decisions about whether or not to assert privilege. As I have previously detailed, a three-judge panel of the D.C. Circuit Court of Appeals issued a lengthy, unanimous decision in December, upholding a federal district judge’s rejection of Trump’s privilege claims. Last month, the Supreme Court affirmed that decision in an 8–1 ruling.
Trump could sue to try to get the courts to countermand Biden. Based on the rulings already made (which clearly anticipated that this situation could recur), he would be sure to lose, so the point of such a lawsuit would be to delay the Committee’s work, in hopes that it could not release its report before the midterm elections — when he hopes that Republicans will win back the House and disband the Committee. (This possibility is one of the reasons I have urged that the Committee be restructured).
Yet, this strategy has no realistic prospect of success. Having already decided the privilege issue in principle, the courts are very likely to reject any new Trump lawsuit rapidly. The Committee, moreover, has done enough work already that, even if access to some materials were blocked, it would still be poised to produce at least a preliminary report in advance of the midterms.
Biden has not given the Committee blanket access to his predecessor’s records. In late December, he asserted executive privilege to shield from disclosure hundreds of pages of Trump-era documents, citing national-security concerns, among other reasons. And the Democrat-controlled Committee acceded to Biden’s privilege assertion rather than taking the White House to court, which could be read as further evidence that it believes it will have enough information to produce a final report in the coming months regardless.
In short, Trump has few good options left for impeding the Committee’s work.