How Barack Obama set the legal path for the FBI's Trump raid

2009 executive order stripped prior presidents' standing to maintain executive privilege. Court hearing Friday in Navarro case could challenge that.

Published: August 23, 2022 9:13pm

Updated: August 23, 2022 11:05pm

White House Deputy Counsel Jonathan Su was a busy man, at least when it came to carrying out President Joe Biden's wish to eliminate former President Donald Trump's claims that materials and testimony from his presidency were covered by executive privilege.

Su sent letters to former Trump adviser Steve Bannon last October and former advisers Peter Navarro and Gen. Mike Flynn in February informing them that the incumbent president had waived any claims Trump might have that testimony or evidence they might provide the House Jan. 6 committee was covered by executive privilege.

"President Biden determined that an assertion of executive privilege is not justified with respect to a set of documents shedding light on events within the White House on and about January 6, 2021," Su wrote Bannon attorney Robert Costello last Oct. 18.

In a Feb. 28 letter to Navarro, Su wrote, "In light of unique and extraordinary nature of the matters under investigation, President Biden has determined that an assertion of executive privilege is not in the national interest, and therefore is not justified."

By spring, Su had also given permission to the National Archives to reject Trump's claims of privilege over documents with classified markings held at Mar-a-Lago so that the FBI could open a criminal investigation of the former president.

"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,'" acting National Archivist Debra Steidel Wall wrote Trump's lawyers on May 8. "... I have therefore decided not to honor the former President's 'protective' claim of privilege."

Su's colleagues in the White House counsel's office sent similar letters to other aides, including former Chief of Staff Mark Meadows, records shared with Just the News show.

In the decade after the Sept. 11 terror attacks, Su wouldn't have had such wide latitude. An executive order that George W. Bush signed on Nov. 1, 2001 declared that an incumbent president couldn't overrule a former president's claims to executive privilege over documents from their tenure if the two could not come to an agreement.

"If under the standard set forth in section 4 below, the incumbent President does not concur in the former President's decision to request withholding of the records as privileged, the incumbent President shall so inform the former President and the Archivist," that executive order concluded. "Because the former President independently retains the right to assert constitutionally based privileges, the Archivist shall not permit access to the records by a requester unless and until the incumbent President advises the Archivist that the former President and the incumbent President agree to authorize access to the records or until so ordered by a final and non-appealable court order."

Bush's order added for emphasis: "Absent compelling circumstances, the incumbent President will concur in the privilege decision of the former President."

But Barack Obama reversed that guidance nearly a decade later, going back to the Watergate and Reagan-era guidance that the incumbent president had a final say over past presidents and acted through the National Archivist.

"In making the determination referred to in subsection (a) of this section, the Archivist shall abide by any instructions given him by the incumbent President or his designee unless otherwise directed by a final court order," Obama's order dated Jan. 21, 2009 stated. "The Archivist shall notify the incumbent and former Presidents of his determination at least 30 days prior to disclosure of the Presidential record."

Trump never changed that guidance during his presidency, allowing the Biden White House the latitude to waive the privileges of the 45th president in both the Jan. 6 congressional probe and the FBI's criminal investigation of the Mar-a-Lago records.

Once the Biden White House cleared the way, the FBI and Justice Department moved speedily to escalate their investigation, empaneling a grand jury in May and issuing a subpoena to Trump, visiting his home on June 3 and eventually raiding the home with a criminal search warrant on Aug. 8. In other words, Obama's order opened the door to the now-infamous Trump raid.

The Supreme Court has not ruled definitively on the issue. The most famous case involving Richard Nixon was conducted under an older presidential records law. In that case, the Supreme Court pierced Nixon's executive privilege, stating the incumbent president's opinion on whether to release the records weighed heavily on the decision but was not absolute.

In her May 8 letter to Trump's legal defense team, Wall noted the wiggle room in the court's opinion, saying the Nixon case "strongly suggests that a former President may not successfully assert executive privilege 'against the very Executive Branch in whose name the privilege is invoked.'"

Alan Dershowitz, the famed Harvard law professor emeritus, said he believes the Supreme Court today would give a former president more deference than Nixon in the aftermath of Watergate and encouraged Trump to pursue such a legal challenge.

"The idea that a sitting president can somehow waive the executive privilege of a previous president really wrecks the executive privilege, which is implicit in Article II of the Constitution," Dershowitz told Just the News on Tuesday. "You can't have a privilege, which then your political opponent can waive.

"What President would ever seek advice and confide in people around him — Cabinet members, White House counsel, White House chief of staff — if you knew that when you're defeated for office, and you're going to be running again, your opponent can just by saying I waive the privilege, get into every single conversation you ever had. I can't believe that any constitutional scholar would agree with that."

Rep. Claudia Tenney (R-N.Y.) said if the Obama-Biden standard is allowed to stand, Republicans in the future will almost certainly seek to pierce the privileges of Obama and Biden when they have control of Congress.

"If they're able to go and waive presidential privilege, and executive privilege at this point, well, who's to say that the next Republican president or presidents coming afterwards, couldn't go in and go after, as you say, Fast and Furious, go after Hunter Biden's laptop, go after everything that Obama did when he was president?" she asked in an interview on the John Solomon Reports podcast.

The first challenge to the Obama-Biden precedent may come as soon as Friday, when Navarro's legal team argues in support of a motion in federal court to compel the Justice Department to disclose all of its contacts with Congress and the White House, suggesting the three collaborated to pierce the Trump privilege claims in potential violation of the Constitution's separation of powers.

Navarro's legal team argues in its motion that Su's "unsolicited" letter to him in February, two days before he was to testify in Congress, likely didn't happen as a coincidence and that the Biden administration should be forced to disclose its contacts with the Democrat-controlled Congress.

"It was improper for President Biden to attempt to influence the Department of Justice's prosecutorial discretion regarding individuals who failed to comply with Select Committee subpoenas," Navarro's lawyers argued. "It is entirely possible that political appointees or others at the Department interpreted President Biden's statement as a directive to prosecute."

DOJ scoffed at the notion and has told the court it has no responsive documents showing contacts between the various players. But the judge has allowed the argument to proceed to a hearing.

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