Biden White House facilitated DOJ's criminal probe against Trump, scuttled privilege claims: memos

"I have therefore decided not to honor the former President's 'protective' claim of privilege," acting National Archivist Debra Steidel Wall wrote Trump's team in May.

Published: August 22, 2022 7:56pm

Updated: August 23, 2022 8:26pm

Long before it professed no prior knowledge of the raid on Donald Trump's estate, the Biden White House worked directly with the Justice Department and National Archives to instigate the criminal probe into alleged mishandling of documents, allowing the FBI to review evidence retrieved from Mar-a-Lago this spring and eliminating the 45th president's claims to executive privilege, according to contemporaneous government documents reviewed by Just the News.

The memos show then-White House Deputy Counsel Jonathan Su was engaged in conversations with the FBI, DOJ and National Archives as early as April, shortly after 15 boxes of classified and other materials were voluntarily returned to the federal historical agency from Trump's Florida home.

By May, Su conveyed to the Archives that President Joe Biden would not object to waiving his predecessor's claims to executive privilege, a decision that opened the door for DOJ to get a grand jury to issue a subpoena compelling Trump to turn over any remaining materials he possessed from his presidency.

The machinations are summarized in several memos and emails exchanged between the various agencies in spring 2022, months before the FBI took the added unprecedented step of raiding Trump's Florida compound with a court-issued search warrant.

The most complete summary was contained in a lengthy letter dated May 10 that acting National Archivist Debra Steidel Wall sent Trump's lawyers summarizing the White House's involvement.

"On April 11, 2022, the White House Counsel's Office — affirming a request from the Department of Justice supported by an FBI letterhead memorandum — formally transmitted a request that NARA provide the FBI access to the 15 boxes for its review within seven days, with the possibility that the FBI might request copies of specific documents following its review of the boxes," Wall wrote Trump defense attorney Evan Corcoran.

That letter revealed Biden empowered the National Archives and Records Administration to waive any claims to executive privilege that Trump might assert to block DOJ from gaining access to the documents.

"The Counsel to the President has informed me that, in light of the particular circumstances presented here, President Biden defers to my determination, in consultation with the Assistant Attorney General for the Office of Legal Counsel, regarding whether or not I should uphold the former President's purported 'protective assertion of executive privilege,'" Wall wrote. "... I have therefore decided not to honor the former President's 'protective' claim of privilege."

The memos provide the most definitive evidence to date of the current White House's effort to facilitate a criminal probe of the man Joe Biden beat in the 2020 election and may face again as a challenger in 2024. That involvement included eliminating one of the legal defenses Trump might use to fight the FBI over access to his documents.

Rep. Jim Jordan (R-Ohio), the ranking Republican on the House Judiciary Committee and the committee's likely chairman if the GOP win control of Congress in November, called the Biden White House's involvement and privilege waiver "amazing news" with implications for past and future presidents.

"Look, the left, they've been out to get President Trump because President Trump's a threat to the clique, to the swamp, to the bureaucracy, to the deep state," Jordan told the "Just the News, Not Noise" television show Tuesday night. "Whatever term you want to use. And they all know it.

"That's why they were out to get him before he was in office, and they set up the whole Russia collusion hoax. It's why they tried to get him while he was in office. And of course, obviously they continue to do so now that he's left. It's just never going to end."

Alan Dershowitz, the famed Harvard law professor emeritus and lifelong Democrat, reviewed some of the correspondence at Just the News' request. He said the Biden White House's eagerness to waive Trump's claims of privilege could have future implications for generations of presidents to come.

"I was very surprised," Dershowitz said after reading the text of Wall's letter. "The current president should not be able to waive the executive privilege of a predecessor, without the consent of the former president. Otherwise, [privilege] means nothing. What president will ever discuss anything in private if he knows the man who beat him can and will disclose it."

While some courts have upheld the notion of a successor president waiving privilege for a predecessor, Dershowitz said the matter remains to be decided definitively by the U.S. Supreme Court.

"The best thinking is that an incumbent president cannot waive the right of the previous president," he said in a phone interview with Just the News. "It would make a mockery of the whole notion of privilege."

In her letter, Wall told Corcoran the Biden administration believes a Watergate era ruling suggested Biden had the authority to waive Trump's privileges.

"The Supreme Court's decision in Nixon v. Administrator of General Services, 433 U.S. 425 (1977), strongly suggests that a former President may not successfully assert executive privilege 'against the very Executive Branch in whose name the privilege is invoked,'" she wrote. That ruling, however, was issued under an earlier predecessor law for presidential records and in the immediate aftermath of one of America's worst presidential scandals.

The correspondence reviewed by Just the News also provides a contemporaneous window into what the National Archives (NARA) found when it first got boxes of documents returned from Trump's compound in February 2022. Those boxes had been packed up by the General Services Administration as Trump was leaving the White House on Jan. 20, 2021.

"In its initial review of materials within those boxes, NARA identified items marked as classified national security information, up to the level of Top Secret and including Sensitive Compartmented Information and Special Access Program materials," Wall wrote. "NARA informed the Department of Justice about that discovery, which prompted the Department to ask the President to request that NARA provide the FBI with access to the boxes at issue so that the FBI and others in the Intelligence Community could examine them."

The correspondence and emails show Corcoran had a phone conversation with Su about privilege claims in the spring, with Trump's lawyers raising concerns that some of the materials were subject to Trump's claims of executive privilege.

"We have requested the ability to review the documents," Corcoran wrote National Archives General Counsel Gary Stern on April 29, copying Su on the letter. "That review is necessary in order to ascertain whether any specific document is subject to privilege. We would respectfully request that you restrict access to the documents until we have had the opportunity to review the documents and to consult with President Donald J. Trump so that he may personally make any decision to assert a claim of constitutionally based privilege."

But a dozen days later, Wall informed Corcoran that she had the blessing of Biden to overrule those privilege claims and share all materials requested by the DOJ and FBI.

"The White House Counsel's Office acquiesced in an extension of the production date to April 29, and so advised NARA," she wrote. "In accord with that agreement, we had not yet provided the FBI with access to the records when we received your letter on April 29, and we have continued to refrain from providing such access to date.

"It has now been four weeks since we first informed you of our intent to provide the FBI access to the boxes so that it and others in the Intelligence Community can conduct their reviews. Notwithstanding the urgency conveyed by the Department of Justice and the reasonable extension afforded to the former President, your April 29 letter asks for additional time for you to review the materials in the boxes.

"Accordingly, I have consulted with the Assistant Attorney General for the Office of Legal Counsel to inform my 'determination as to whether to honor the former President's claim of privilege or instead to disclose the Presidential records notwithstanding the claim of privilege.' ... I have therefore decided not to honor the former President's 'protective' claim of privilege."

Within a couple of weeks of Wall's letter to Corocoran, the DOJ sent a grand jury subpoena to Trump's team demanding the return of any remaining national security documents, which precipitated a voluntary visit by the FBI to Mar-a-Lago on June 3, when agents picked a small amount of materials Trump's lawyers said were responsive to the subpoena  

Two months later, the FBI escalated again, seeking a search warrant to raid the Trump estate on Aug. 8.

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