The letter, written on May 10 by Acting Archivist Debra Wall, is a response to two other letters that were apparently sent to her by Trump attorney Evan Corcoran. This letter is clearly just one instance in a long chain of correspondence, some of which involved Corcoran begging Wall to hold off on bringing in the FBI.
I write in response to your letters of April 29, 2022, and May 1, 2022, requesting that the National Archives and Records Administration (NARA) further delay the disclosure to the Federal Bureau of Investigation (FBI) of the records that were the subject of our April 12, 2022 notification to an authorized representative of former President Trump.
The letter lays out, again, the timeline of events, including how the Archives negotiated with Trump to finally obtain the return of 15 boxes of records in January. The review of those documents only made the Archives more determined to recover the boxes of material remaining at Mar-a-Lago.
… NARA identified items marked as classified national security information, up to the level of Top Secret and including Sensitive Compartmented Information and Special Access Program materials.
Step by step, Wall goes through the Archive’s reasoning on why Trump is not due any privilege that would allow him to keep these documents. And in doing so, she points out what may be the most critical item from those unpublished pieces of past correspondence.
As the Department of Justice’s National Security Division explained to you on April 29, 2022: There are important national security interests in the FBI and others in the Intelligence Community getting access to these materials.
Wall goes on to explain that even though they had informed Trump’s attorney that they intended to contact the FBI within the week, the White House Council’s Office delayed such action until April 29 “in response to a request from another representative of the former President.” That this delay came from the White House rather than the National Archives shows the Biden White House being directly involved at this point, not to push the FBI into Mar-a-Lago, but to give Trump more time to do the right thing.
However, the letter makes it clear that the White House and President Joe Biden have deferred to Wall, making the next steps her decision. Wall lays things out for Corcoran extremely succinctly, and extremely forcefully.
- A full month has passed since the Archives informed Trump’s representatives that they couldn’t wait any longer and intended to provide their information to the FBI for review.
- The contents of the previous tranche of material have made recovering what’s in the rest of the boxes an “urgent” matter for the intelligence community and the Department of Justice.
- President Biden has given a “reasonable extension,” but Trump’s team still has not acted.
- Trump’s attorneys continue to make claims about determining whether documents are “subject to privilege” when no such privilege can exist.
The letter also makes it clear that Trump’s response has included a threat.
Your April 29 letter further states that in the event we do not afford you further time to review the records before NARA discloses them in response to the request, we should consider your letter to be “a protective assertion of executive privilege made by counsel for the former President.”
But that is an assertion only a sitting executive can make. Trump can no more make declarations of executive privilege from Mar-a-Lago than he can sign bills or order in the military. That fact is underscored in a segment of the letter that had previously appeared in other publications.
The Assistant Attorney General has advised me that there is no precedent for an assertion of executive privilege by a former President against an incumbent President to prevent the latter from obtaining from NARA Presidential records belonging to the Federal Government where “such records contain information that is needed for the conduct of current business of the incumbent President’s office and that is not otherwise available.”
Wall helpfully lays out all past litigation over this subject, showing that Trump has absolutely no standing for this claim. In fact, the law is so clear on this matter that Wall’s frustration in having to go through this dance is blindingly clear.
It is not necessary that I decide whether there might be any circumstances in which a former President could successfully assert a claim of executive privilege to prevent an Executive Branch agency from having access to Presidential records for the performance of valid executive functions. The question in this case is not a close one.
The government is seeking the return of records that belong to the government, not Trump. Trump has no power to exert privilege over those records, the ownership of which is clearly defined in law. And Corcoran’s declaration of “a protective assertion of executive privilege” is bullshit.
Wall doesn’t quite say “bullshit,” but her disdain for the odor coming off of Corcoran’s statement clearly shows in the text.
Because an assertion of executive privilege against the incumbent President under these circumstances would not be viable, it follows that there is no basis for the former President to make a “protective assertion of executive privilege,” which the Assistant Attorney General informs me has never been made outside the context of a congressional demand for information from the Executive Branch. … I have therefore decided not to honor the former President’s “protective” claim of privilege.
What this letter clearly shows is that the National Archives, the Department of Justice, and President Biden all bent over backwards in an attempt to allow Trump to return these documents as quietly as possible. It also shows that the documents contain material critical to national security and of deep concern both to the Department of Justice and the intelligence community.
The National Archives asked nicely. Trump stalled. They asked repeatedly. Trump stalled. Then they warned Trump that they would have to take steps to secure the information. Trump stalled. They turned to the White House Council’s Office and President Biden graciously allowed Trump the time he requested. But at the end of that time, Trump still stalled. Ultimately, the FBI raided Mar-a-Lago because Trump left them no other choice in securing vital national secrets.
How Solomon thinks that any part of this letter might be favorable to Trump is a mystery. But not as big a mystery as why Trump stalled, and just what he was doing with the national security documents that he stole from the White House.
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