Lawyers for former President Donald Trump filed a lawsuit on Monday against the House select committee investigating the Capitol riot, asking a federal judge to stop the National Archives from handing over a raft of documents that President Joe Biden had greenlighted for release despite Trump’s claims of executive privilege.
The lawsuit, filed against the Democratic-led congressional committee and the National Archives itself, said Trump “files this action requesting that the Court invalidate the Committee’s requests and enjoin the Archivist from turning over the records in question.”
The complaint was filed by Trump lawyer Jesse Binnall, who helped attorney Sidney Powell represent former Trump National Security Adviser Michael Flynn in his FBI perjury case. “At a bare minimum, the Court should enjoin the Archivist from producing any potentially privileged records until President Trump is able to conduct a full privilege review of all of the requested materials,” the lawsuit argues.
“As it relates to any materials being sought in situations like this, where fundamental privileges and constitutional issues are at stake and where a committee has declined to grant sufficient time to conduct a full review, there is a longstanding bipartisan tradition of protective assertions of executive privilege designed to ensure the ability to make a final assertion, if necessary, over some or all of the requested material,” Trump’s legal team contended. “The Biden Administration’s waiver of executive privilege is a myopic, political maneuver designed to maintain the support of its political rivals and is not based on any discernable [sic] legal principle.”
The Trump complaint named the Capitol riot investigative committee’s chairman, Democratic Rep. Bennie Thompson, as well as the select committee itself, the National Archives and Records Administration, and David Ferriero, the archivist of the United States, as defendants.
Dana Remus, a counsel to Biden, sent a letter to the archivist earlier this month, telling Ferriero that “after my consultations with the Office of Legal Counsel at the Department of Justice, 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.” The Biden lawyer added: “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.”
Remus sent a follow-up letter to the archivist that same day.
“President Biden does not uphold the former President’s assertion of privilege,” Remus said, adding Biden “instructs you … to provide the pages identified as privileged by the former President to the Select Committee.”
The House select committee issued what it called a “sweeping demand for executive branch records” in August, sending letters to the National Archives as well as to the Defense Department, Department of Homeland Security, Department of the Interior, Justice Department, FBI, National Counterterrorism Center, and Office of the Director of National Intelligence seeking information.
Thompson said at the time the committee was “examining the facts, circumstances, and causes of the January 6th attack.”
The chairman’s letter to the National Archives specifically requested “all documents and communications relating in any way to remarks made by Donald Trump or any other persons on January 6, including Donald Trump’s and other speakers’ public remarks at the rally on the morning of January 6, and Donald Trump’s Twitter messages throughout the day.”
Trump’s lawsuit criticized the request.
“Issued public statements are one thing, but the notion that Congress is somehow entitled to ask for and review any and all private conversations, remarks, or drafts of public statements considered by the President of the United States and his close advisors, without limitations on (among other things) subject matter, would destroy the very fabric of our constitutional separation of powers and invade fundamental privileges designed to maintain the autonomy and functioning of the Executive Branch,” the complaint says.
The Trump lawsuit claims the House committee “has decided to harass President Trump and senior members of his administration (among others) by sending an illegal, unfounded, and overbroad records request” to the National Archives, and argues the Democratic request “is almost limitless in scope.”
The complaint further says “the Committee’s request amounts to nothing less than a vexatious, illegal fishing expedition openly endorsed by Biden and designed to unconstitutionally investigate President Trump and his administration.”
White House press secretary Jen Psakisaid in late September that Biden “has already concluded that it would not be appropriate to assert executive privilege” in the Capitol riot investigation into the former president.
Psaki was pressed on Thursday about what might happen one day “if the shoe is on the other foot” and a Republican administration decides to waive executive privilege related to a Democratic one — and whether a “Pandora’s box” was being opened by the Biden administration.
“I can assure you … that this president has no intention to lead an insurrection on our nation’s Capitol,” Psaki replied, adding, “I think if you look back at past presidents, Democratic and Republican, there isn’t really a precedent for what we’re talking about with the select committee and what they’re trying to get to the bottom of. And the uniqueness of that, I think, is important context.”
Biden was asked Friday evening if he believes the DOJ should prosecute anyone who resists subpoenas from the select committee, which has already committed to criminal contempt proceedings against former White House chief strategist Steve Bannon.
In response to Biden’s comment about prosecutions, which seemingly clashes with a pledge he made months ago to allow the DOJ to remain independent, the agency stressed prosecutorial decisions would be kept free of White House influence.
“The Department of Justice will make its own independent decisions in all prosecutions based solely on the facts and the law. Period. Full stop,” DOJ spokesman Anthony Coley told the Washington Examiner.
Psaki said on Monday that Biden “continues to believe that the Department of Justice has the purview and the independence to make decisions about prosecutions, and that continues to be his view, and that continues to be how he will govern.”