The decision marks the first acknowledgment that some of former President Donald Trump’s records may end up outside the select committee’s reach, even if they relate to its investigation of the former president’s efforts to overturn the 2020 election results. It’s unclear whether the committee delayed its pursuit of the records at the White House’s request or based on its own analysis, but Rep. Jamie Raskin (D-Md.) called the decision “a process of give and take” with the Biden administration.
“We are not acknowledging privilege in any of these cases — especially because President Biden is failing to assert an executive privilege — and we don’t think that trying to overthrow the U.S. government is something that triggers executive privilege,” Raskin said. “It’s hard to see that as part of the official duties of a president.”
Tim Mulvey, the committee’s spokesperson, emphasized that the decision to defer the request was temporary.
“The Select Committee has not withdrawn its request for those records and will continue to engage with the executive branch to ensure we get access to all the information relevant to our probe,” Mulvey said.
A White House official declined to detail the reasons the committee deferred its request — or at whose recommendation — but described it as “a routine part of the accommodation process between Congress and the Executive Branch in these types of matters.”
“This reflects a productive engagement between the Select Committee and the Executive Branch,” the official said.
The select committee asked the National Archives last month to produce voluminous records from Trump’s White House, including communications between his top advisers and central figures involved in his quest to overturn the 2020 election results. National Archivist David Ferriero has so far identified at least three tranches of documents that respond to the committee’s request.
According to the federal law governing presidential records, Ferriero must first produce the records to Trump, who then has 30 days to decide whether to ask Biden to assert executive privilege on his predecessor’s behalf.
Trump has made sweeping claims of privilege over all of his White House records and also identified specific sets of documents that he asked Biden to block from the committee. So far, Biden has rejected the bulk of Trump’s requests, calling the attack on the Capitol unprecedented and worthy of a fulsome investigation.
Biden’s first denial prompted Trump to file a federal lawsuit to block the committee from obtaining his records, which is slated for a hearing before Judge Tanya Chutkan next week.
But even as Biden’s White House has rejected the lion’s share of Trump’s reasoning thus far, it’s made clear that it will consider each tranche of documents produced by the Archives on a case-by-case basis to determine whether any records are subject to legitimate privilege claims. It appears that the request the committee has deferred includes dozens of pages that may fall into that category.
The White House alluded to negotiations with the committee in a letter to Ferriero on Monday.
“In the course of the accommodation process between Congress and the Executive Branch, the select committee has deferred its request for the following responsive records,” White House Counsel Dana Remus wrote, identifying about 50 pages of records without describing the information they contain.
The decision to delay the request for these pages does not seem to be the result of a privilege claim by Trump. In her letter, Remus said that despite the committee’s deferral, Ferriero should provide any of the 50 pages “as to which the former president has not asserted privilege.”
Trump aides did not respond to a request for comment on the development.