by John Solomon
2009 executive order stripped prior presidents' standing to maintain executive privilege. Court hearing Friday in Navarro case could challenge that.
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.
John Solomon
Source: https://justthenews.com/politics-policy/all-things-trump/how-barack-obama-set-legal-path-fbis-trump-raid
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