Jan. 6 probe request sends hundreds of pages to Trump team for review

When it comes to document after document relevant to the Jan. 6 panel’s expansive request, Biden White House lawyers will likely face the same tough dilemma: They can either send Congress the material over Trump’s objections, entering unprecedented legal territory about the treatment of former presidents; or they can withhold materials from Hill allies, thereby stymieing investigators’ access and potentially generating significant political fallout.

Here’s how it’s playing out:

On Aug. 25, the committee investigating the Capitol attack sent a 12-page document request to the National Archives. The committee asked for materials that could be highly sensitive, including any internal communications on Jan. 6 related to a host of officials, including top White House lawyers, the president’s national security adviser and the president’s chief of staff.

The House select panel on the insurrection, led by Chair Bennie Thompson (D-Miss.) and Vice Chair Liz Cheney (R-Wyo.), also asked for all notes summarizing the president’s meetings that day and for all documents sent to and from the White House Situation Room on Jan. 6. That’s just a small sampling of the committee’s sweeping bid for materials.

Much of what the committee seeks could be covered by executive privilege — a legal doctrine shielding presidents’ communications with their advisers from becoming public. The privilege exists so that presidents can have candid and uncomfortable conversations with their top aides without worrying about future embarrassment or repercussions.

And the law governing White House records, called the Presidential Records Act, says former presidents have the right to weigh in on whether executive privilege should be asserted to prevent their administrations’ materials from going to Congress. But only the current president can formally assert executive privilege to block the National Archives from releasing White House records, according to a subsequent executive order on the process.

Archivists are now working to find records that are responsive to the committee’s request, according to the source familiar with the process, who addressed it candidly on condition of anonymity. As those records are found, they are sending them to Trump’s legal team on a rolling basis.

As those Trump lawyers receive records, they have 30 days to decide whether or not to ask the Biden White House to assert executive privilege and block the archivists from sharing with the Hill. Then the Biden administration has 30 days to decide whether or not to assert the privilege.

If the Biden team decides to override the Trump team, another 60-day window opens in which the Trump team can try to change Biden lawyers’ minds, or go to court. But the Presidential Records Act and the executive orders interpreting it include sometimes-fuzzy language, and experts may take different views on some of the finer points of this process, including the timelines…