As part of its comprehensive investigation, the bipartisan House committee examining the Jan. 6 attack is seeking materials from the White House — not because the Biden administration bears responsibility for the insurrectionist riot, but because its predecessor does.
As we’ve discussed, Donald Trump, eager to hide as much information as possible, announced plans weeks ago to cite “executive privilege” to block the select committee’s requests. As NBC News recently noted, as a matter of tradition, sitting presidents have shielded White House materials at the request of their predecessors.
At face value, that’s understandable: It’s difficult for former presidents to predict when sensitive information from their tenures might be sought, which has led to a general policy against disclosures.
But as of a couple of weeks ago, President Joe Biden and his team said they are putting tradition aside and declining Trump’s request to keep hidden materials related to Jan. 6.
It was against this backdrop that CBS News’ Ed O’Keefe asked White House press secretary Jen Psaki the relevant question: “Has there been any concern or conversation about what might happen one day when the shoe is on the other foot and if another administration or the other party comes in and says there’s an extraordinary circumstance and they want to hand over documents that were deemed privileged by the Biden administration?”
The presidential spokesperson responded:
“I can assure you, Ed, that this president has no intention to lead an insurrection on our nation’s Capitol.”
I don’t imagine anyone was especially surprised by Psaki’s answer, though it reinforced a larger truth: These really are unique circumstances, and they deserve to be seen as such. Imagining hypothetical scenarios about “when the shoe is on the other foot” is always sensible, but Trump’s actions represented a unique scourge, unlike anything in the American tradition.
Though her tone was more formal, White House Counsel Dana Remus made the same point in her letter to the National Archives two weeks ago. “These are unique and extraordinary circumstances,” Remus wrote. “Congress is examining an assault on our Constitution and democratic institutions provoked and fanned by those sworn to protect them, and the conduct under investigation extends far beyond typical deliberations concerning the proper discharge of the President’s constitutional responsibilities.”
She 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.” In terms of the process going forward, circling back to our earlier coverage, the White House has given the National Archives the green light to release materials — phone records, visitor logs, internal communications, etc. — to the congressional panel investigating the insurrectionist attack. It’s difficult to speculate about what those documents may entail, but we know Trump did not want to give lawmakers this access. Indeed, the former president still doesn’t. As a NBC News report added, we may very well see “a legal showdown between the current and former president over executive privilege,” though the Republican “faces long legal odds” since the U.S. Supreme Court ruled in 1977 that the incumbent president “is in the best position to assess the present and future needs of the Executive Branch.” Watch this space.
Steve Benen is a producer for "The Rachel Maddow Show," the editor of MaddowBlog and an MS NOW political contributor. He's also the bestselling author of "Ministry of Truth: Democracy, Reality, and the Republicans' War on the Recent Past."
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