Former President Donald Trump has filed a lawsuit against the House select committee investigating the Jan. 6 insurrection, an attempt to block lawmakers from accessing archived presidential documents.
In the Monday complaint that also addressed the National Archives, the former president called the committee’s probe into the Jan. 6 attack on the Capitol an “illegal fishing expedition.” Violent Trump supporters attempted to infiltrate the Capitol with the intent of overturning the election.
The lawsuit comes in response to the committee’s records request to the National Archives seeking information from the White House related to Jan. 6. The committee is seeking a wide array of communications and documentation from around the time of the attack, including those related to Trump’s remarks at his Jan. 6 rally before the attack, any documented efforts to persuade him to deliver a message to the rioters, visitor logs, phone logs and other records.
On Oct. 8, Trump told U.S. Archivist David Ferriero that he was “formally assert[ing] executive privilege” over 47 documents, arguing that the committee’s request was too broad and violated other privileges. The former president tried to cite executive privilege again in his lawsuit, despite being a civilian.
As the current president, Joe Biden has the power to assert executive privilege as a reason for blocking access to the documents from the committee. On the same day as Trump’s letter to Ferriero, however, Biden approved the release of all requested documentation.
“President Biden has determined that an assertion of executive privilege is not in the best interests of the United States, and therefore is not justified as to any of the documents,” White House counsel Dana Remus wrote in a letter to the National Archives. “The 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.”
There are no clear answers on whether a former president can assert executive privilege, but there are some principles and precedents that could guide a court’s decision — such as the Supreme Court ordering former President Richard Nixon to disclose the White House tapes about Watergate.
Executive privilege is an assertion meant to be made not for the benefit of the president as an individual, but for the benefit of the country. An incumbent president, such as Biden in this case, is the one who has been elected to represent the country and is therefore likely the one with the constitutional authority to determine when disclosing White House documents is in the country’s interest.
And in the case of the Jan. 6 attack, Biden decided that providing the documents to the select committee was in the country’s interest.
“These are unique and extraordinary circumstances,” Remus wrote. “An unprecedented effort to obstruct the peaceful transfer of power, threatening not only the safety of Congress and others present at the Capitol, but also the principles of democracy enshrined in our history and our Constitution.”
The documents shed light on events within the White House on or about Jan. 6 and bear on the select committee’s need to understand the facts underlying the most serious attack on the operations of the federal government since the Civil War.”