Constitutional Law

Trump suit says executive privilege can't be waived by Biden in Capitol records fight

  • Print

Capitol building

Image from Shutterstock.

Former President Donald Trump filed a lawsuit Monday that calls the U.S. House of Representative's Jan. 6 committee’s request for records in connection with the U.S. Capitol riot “a vexatious, illegal fishing expedition.”

The requests were made by the House Select Committee to Investigate the January 6th Attack on the United States Capitol.

Publications covering the suit include the Washington Post, Law360,, Courthouse News Service, CNN and the New York Times.

The Washington Post cited three “pillars” of the suit, as described by Trump’s office. First, the records request serves no useful legislation purpose. Second, it undermines Trump’s executive privilege rights. Third, Trump needs more time to review the records requests.

Trump lawyer Jesse R. Binnall filed the suit. It says the requests for documents “are unprecedented in their breadth and scope and are untethered from any legitimate legislative purpose.”

The suit takes aim at the Presidential Records Act, which requires the preservation of presidential records with historical value. One section of the law requires that presidential records be made available to Congress or its committees when “needed for the conduct of its business and that is not otherwise available.”

Under regulations interpreting the law, the National Archives and Records Administration must notify the current president and a former president of requests for records made during the former president’s term of office.

If a former president asserts privilege and the incumbent president agrees that the records are privileged, the records aren’t released unless a court intervenes. If the current president waives executive privilege, despite the former president’s assertion of privilege, the records are disclosed unless a court intervenes.

Trump’s suit notes that the Biden administration waived executive privilege to permit disclosure, calling the decision “a myopic, political maneuver.” But the waiver “is irrelevant insofar as the committee’s request serves no valid legislative purpose and is thus unconstitutional,” the suit says.

In any event, the suit says, President Joe Biden can’t waive Trump’s executive privilege claim.

“If the PRA is read so broadly as to allow an incumbent president unfettered discretion to waive the previous president’s executive privilege, mere months following an administration change, then it would render the act unconstitutional,” the suit says.

The suit seeks a declaration that the committee’s requests are invalid or, in the alternative, a declaration that the Presidential Records Act is an unconstitutional violation of the separate of powers.

The suit also seeks, in the alternative to the requested declarations, that a court bar release of potentially privileged records until Trump can conduct a privilege review.

U.S. District Judge Tanya Chutkan of the District of Columbia will preside in the suit, reports in a separate story.

See also: “US should investigate potential civil rights violations of jailed Capitol riot defendants, judge says” “Does executive privilege still protect Trump after his term ends? Fight brews over congressional subpoenas” “ABA president condemns mob assault on Capitol as Rep. Gohmert asks SCOTUS to stop Pence” “Could Trump face charges for speech before Capitol riot? Experts differ on Brandenburg impact”

Give us feedback, share a story tip or update, or report an error.