Government Memos: Joe Biden Okayed NARA Decision to Waive Trump’s Claims to Executive Privilege Ahead of FBI Raid

The Biden White House helped initiate the investigation into former president Trump’s alleged mishandling of documents before the raid on his Mar-a-Lago estate, according to government memos obtained by Just the News.

Then-White House Deputy Counsel Jonathan Su worked with partisan officials in the permanent bureaucracy to “instigate” and “facilitate” the criminal probe into Joe Biden’s potential 2024 opponent, the documents show.

Su engaged in conversations with the FBI, Department of Justice, and the National Archives and Records Administration (NARA) in April, and by May, had conveyed to the Archives that Joe Biden would not object to waiving Trump’s claims to executive privilege, Just the News reported.  By waiving the 45th president’s executive privilege, the Biden Justice Department was able to get a grand jury to issue a subpoena forcing Trump to turn over any remaining materials he possessed from his presidency.

In January, National Archives officials retrieved 15 boxes of records that had been stored at Mar-a-Lago, and in June, federal agents visited Trump’s Florida compound to search for additional materials. Then, on August 8, the FBI raided Mar-a-Lago, to retrieve alleged classified documents. Trump maintains that he declassified all of the material he brought home from the White House.

Emails and memos exchanged between the various agencies in spring 2022 reveal the White House’s involvement in the machinations that led to the unprecedented FBI raid.  Biden White House officials have claimed that Biden had “no advance knowledge” of the raid until Trump put out a statement about it.

Acting National Archivist Debra Steidel Wall summarized the White House’s involvement in a lengthy letter to Trump’s lawyers in May.

“On April 11, 2022, the White House Counsel’s Office — affirming a request from the Department of Justice supported by an FBI letterhead memorandum — formally transmitted a request that NARA provide the FBI access to the 15 boxes for its review within seven days, with the possibility that the FBI might request copies of specific documents following its review of the boxes,” Wall wrote Trump defense attorney Evan Corcoran on May 10.

The DOJ reportedly issued a subpoena to Trump in May to seek “additional documents that it believed may have been in his possession.”

Wall became the Acting Archivist in May of 2022 upon the retirement of David S. Ferriero, the anti-Trump Obama appointee who had obsessed about Trump’s compliance with the Presidential Records Act since Biden’s inauguration. NARA, under the partisan Ferriero, had reportedly handled potential Clinton and Obama violations of the “Federal Records Act” with much more deference toward the Democrats.

Wall’s letter indicated that Biden gave NARA the go ahead to waive any claims to executive privilege that Trump might assert to block DOJ from gaining access to the documents.

“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,'” Wall wrote. “… I have therefore decided not to honor the former President’s ‘protective’ claim of privilege.”

Rep. Jim Jordan (R-Ohio), the ranking Republican on the House Judiciary Committee told Just the News that the Biden White House’s involvement in the privilege waiver was “amazing news” with implications for past and future presidents.

“Look, the left, they’ve been out to get President Trump because President Trump’s a threat to the clique, to the swamp, to the bureaucracy, to the deep state,” Jordan said.  “Whatever term you want to use. And they all know it.

He added: “That’s why they were out to get him before he was in office, and they set up the whole Russia collusion hoax. It’s why they tried to get him while he was in office. And of course, obviously they continue to do so now that he’s left. It’s just never going to end.”

After reviewing the documents, Harvard law professor emeritus and lifelong Democrat Alan Dershowitz said Biden should not have been able to waive the executive privilege of his predecessor.

“I was very surprised,” Dershowitz said after reading Wall’s letter. “The current president should not be able to waive the executive privilege of a predecessor, without the consent of the former president. Otherwise, [privilege] means nothing. What president will ever discuss anything in private if he knows the man who beat him can and will disclose it.”

Dershowitz added that the matter remained a question to be decided definitively by the U.S. Supreme Court.

“The best thinking is that an incumbent president cannot waive the right of the previous president,” he said in a phone interview with Just the News. “It would make a mockery of the whole notion of privilege.”

In her letter to Corcoran, Wall pointed to a Watergate era ruling which gave a successive president the authority to waive executive privileges.

“The Supreme Court’s decision in Nixon v. Administrator of General Services, 433 U.S. 425 (1977), strongly suggests that a former President may not successfully assert executive privilege ‘against the very Executive Branch in whose name the privilege is invoked,'” she wrote.

Trump’s lawyer raised concerns that some of the materials were subject to Trump’s claims of executive privilege in a letter last spring.

“We have requested the ability to review the documents,” Corcoran wrote National Archives General Counsel Gary Stern on April 29, copying Su on the letter. “That review is necessary in order to ascertain whether any specific document is subject to privilege. We would respectfully request that you restrict access to the documents until we have had the opportunity to review the documents and to consult with President Donald J. Trump so that he may personally make any decision to assert a claim of constitutionally based privilege.”

Wall informed Corcoran twelve days later that she had Biden’s blessing to overrule those privilege claims and share all materials requested by his Justice Department.

“The White House Counsel’s Office acquiesced in an extension of the production date to April 29, and so advised NARA,” she wrote. “In accord with that agreement, we had not yet provided the FBI with access to the records when we received your letter on April 29, and we have continued to refrain from providing such access to date.”

The letter continues:

It has now been four weeks since we first informed you of our intent to provide the FBI access to the boxes so that it and others in the Intelligence Community can conduct their reviews. Notwithstanding the urgency conveyed by the Department of Justice and the reasonable extension afforded to the former President, your April 29 letter asks for additional time for you to review the materials in the boxes.

Accordingly, I have consulted with the Assistant Attorney General for the Office of Legal Counsel to inform my ‘determination as to whether to honor the former President’s claim of privilege or instead to disclose the Presidential records notwithstanding the claim of privilege.’ … I have therefore decided not to honor the former President’s ‘protective’ claim of privilege.

Trump on Monday filed a motion in the U.S. District Court for the Southern District of Florida demanding an immediate halt to the DOJ’s review of his documents until a neutral “special master” can be appointed.

“We are now demanding that the Department of ‘Justice’ be instructed to immediately STOP the review of documents illegally seized from my home,” Trump continued. “ALL documents have been previously declassified,” he said.

Biden’s decision to waive his political opponent’s claims of executive privilege “undercut Trump’s legal defense teams ability to develop a defense,” said Just the News founder John Solomon in an interview with Real America’s Voice Monday night. This, he added, amounts to “the sitting incumbent of the White House” launching a criminal investigation against his chief political rival.

“It’s not any more complicated than that,” Solomon said. “The Biden White House sicced the FBI on their rival.”

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About Debra Heine

Debra Heine is a conservative Catholic mom of six and longtime political pundit. She has written for several conservative news websites over the years, including Breitbart and PJ Media.

Photo: WASHINGTON, DC - AUGUST 05: U.S. President Joe Biden delivers remarks during an event on the South Lawn of the White House August 5, 2021 in Washington, DC. Biden delivered remarks on the administration’s efforts to strengthen American leadership on clean cars and trucks. (Photo by Win McNamee/Getty Images)