Assessing Trump’s claim of ‘executive privilege’ on FBI access to MAL docs

By | August 28, 2022

Michael Stern writes:

The National Archives and Records Administration (NARA) and former President Donald Trump are locked in a long running dispute over records taken from the White House in January 2021. According to a NARA May 2022 letter and more recent reporting, the agency went back and forth with Trump’s lawyers about “missing Presidential records” throughout 2021 and well into 2022. In January 2022, Trump transferred 15 boxes of records from Mar-a-Lago to NARA.

It’s an exchange that may now also be relevant to Trump’s asking a federal district court in Florida to appoint a Special Master to filter out documents subject to “executive privilege.”

The May letter establishes a timeline showing how Trump and NARA have tussled over the documents and reveals the former president raised the possibility that executive privilege would block their review by law enforcement and intelligence agencies. But NARA rejected the executive privilege argument and shared the documents with the FBI. Below I discuss the statutory and constitutional framework for assessing Trump’s dispute with NARA regarding FBI access to the 15 boxes and explain why from a legal and constitutional standpoint NARA was not only justified in denying Trump’s assertion of executive privilege. It really had no choice in the matter. [Continue reading…]

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