Although the Biden administration claims that it had no prior knowledge of the raid on Donald Trump's premises at Mar-a-Lago, the White House allegedly worked with the Justice Department (DOJ) and National Archives to initiate a criminal investigation into the former president, allowing the FBI to review evidence retrieved this spring from Trump's Florida home and eliminating the 45th president's executive privilege, according to US investigative journalist John Solomon.
Documents obtained by Solomon's media outlet Just the News show that in April, then-White House Deputy Counsel Jonathan Su was involved in discussions with the FBI, DOJ, and National Archives allegedly pertaining to 15 boxes of classified and other materials which were voluntarily returned by the former president to the federal historical agency.
Trump's legal team requested the ability to review the documents in order to ascertain whether any specific document is subject to constitutionally based privilege. Executive privilege is the power of the US president and other officials in the executive branch to withhold certain forms of consultation between the president and senior advisors. This power would allow Trump to block the DOJ from gaining access to certain documents.
However, once the records were returned, Su informed the Archives that President Joe Biden would not object to waiving Trump's claims to executive privilege. This move, according to Solomon, "opened the door for the DOJ to get a grand jury to issue a subpoena compelling Trump to turn over any remaining materials he possessed from his presidency."
"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," acting National Archivist Debra Steidel Wall wrote to Trump defense attorney Evan Corcoran on May 10.
Wall further revealed that the counsel to the president had informed her that President Biden defers to her determination, in consultation with the assistant attorney general for the Office of Legal Counsel, regarding whether or not she should uphold the former President's purported protective assertion of executive privilege. "I have therefore decided not to honor the former President's 'protective' claim of privilege," she stressed.
The memos obtained by the media outlet show that the FBI and the Intelligence Community were particularly interested in laying their hands on Trump's documents and that the White House was instrumental in arranging such access, according to Solomon.
"The memos provide the most definitive evidence to date of the current White House's effort to facilitate a criminal probe of the man Joe Biden beat in the 2020 election and may face again as a challenger in 2024," the investigative journalist pointed out.
'Mockery of the Whole Notion of Privilege'
Commenting on the White House's eagerness to strip Trump of executive privilege Alan Dershowitz, a Harvard law professor emeritus, warned that the precedent would have implications for future presidents.
"I was very surprised," Dershowitz told Just the News 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."
The law professor argued that the issue of revoking executive privilege of his predecessor by a US president should be decided definitively by the US Supreme Court. Otherwise, the executive privilege will become a joke.
"The best thinking is that an incumbent president cannot waive the right of the previous president," Dershowitz told the media outlet. "It would make a mockery of the whole notion of privilege."
Within two weeks of Wall sending her letter to Trump's lawyer, the Department of Justice sent a grand jury subpoena to Trump's legal team demanding the return of any remaining national security documents. On June 3, the FBI went to Mar-a-Lago to take the requested materials which were handed to them by Trump's lawyers.
However, two months later, federal agents broke into Trump's Florida home and ransacked his premises, grabbing three of his passports, a Roger Stone clemency order, and files purportedly covered by client-attorney privilege. No subpoena was issued prior to the August 8 raid. This prompted US conservative observers to suggest that the FBI raid was nothing but a fishing expedition to delegitimize Trump's 2024 election bid and smear Republicans ahead of the November midterm elections in 2022.