Biden signed off on FBI review of Trump records, National Archives letter reveals

The Biden White House, at the request of the Justice Department, signed off to have the FBI and the intelligence community examine hundreds of pages of classified documents former President Trump turned over to the National Archives and Records Administration (NARA), a newly-surfaced government letter reveals. 

Debra Wall, NARA's acting head, penned a letter to Trump attorney Evan Corcoran May 10 revealing federal officials had been negotiating for months with the Trump team over whether federal law enforcement and intelligence officials should be allowed to conduct a national security review or whether the material should be shielded under Trump’s purported assertion of executive privilege.

The letter, posted Tuesday on the NARA website, indicates the Biden administration did not believe a former president could assert executive privilege over material that, by law, had to be turned over to NARA. 

"NARA identified items marked as classified national security information, up to the level of Top Secret and including Sensitive Compartmented Information and Special Access Program materials," Wall wrote in the letter. 

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"NARA informed the Department of Justice about that discovery, which prompted the Department to ask the President to request that NARA provide the FBI with access to the boxes at issue so that the FBI and others in the Intelligence Community could examine them." 

Wall indicated the archive’s initial review of 15 boxes handed over by Trump in January 2022 included more than 100 classified documents totaling more than 700 pages and included some documents labeled "Sensitive Compartmented Information" and some labeled "Special Access Program," which only a limited number of people are authorized to view in a secure facility.

Wall said she then sought guidance from the White House and Justice Department on how to proceed.  

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"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. 

On April 11, Wall said "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."

The May 10 letter from NARA also indicates ongoing discussions between NARA and Biden's White House Counsel’s office over Trump’s assertion of "executive privilege" over some documents.

Wall ultimately handed over the material to the intelligence community.

"Accordingly, NARA will provide the FBI access to the records in question, as requested by the incumbent President, beginning as early as Thursday, May 12, 2022," Wall wrote, about four months after Trump handed over the records to NARA.

Administration officials privately defend the document review process, saying the Justice Department, by law, cannot make unilateral decisions about executive privilege, and that, ultimately, the sitting president decides. Those officials said Biden’s decision to defer to NARA and the DOJ was fully consistent with his executive authority.

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"The question in this case is not a close one," Wall wrote. "The Executive Branch here is seeking access to records belonging to, and in the custody of, the Federal Government itself, not only in order to investigate whether those records were handled in an unlawful manner but also, as the National Security Division explained, to ‘conduct an assessment of the potential damage resulting from the apparent manner in which these materials were stored and transported and take any necessary remedial steps.’"

Fox News reported earlier this month that a face-to-face meeting June 3 at Mar-a-Lago between Jay Bratt, the chief of the Counterintelligence and Export Control Section in the Justice Department’s National Security Division; three FBI agents; and Trump's legal team, revealed that more classified documents were potentially being stored at the former president's private residence. 

Sources say about 150 more classified documents were seized from Mar-A-Lago, adding to the more than 100 documents turned over in January.

Fox News first reported last week that FBI agents seized boxes containing records covered by attorney-client privilege and potentially executive privilege during the raid.

Trump has said he had been cooperative and negotiating in good faith with NARA about the requested presidential material and again on Monday slammed the FBI search as "unnecessary, unwarranted, and un-American."

Trump and his legal team filed a motion Monday evening seeking an independent review of the records seized by the FBI during its "unprecedented" and "unnecessary" raid, saying the decision to search his private residence just months before the 2022 midterm elections "involved political calculations aimed at diminishing the leading voice in the Republican Party, President Trump."

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According to the motion filed Monday in the U.S. District Court for the Southern District of Florida, Trump and his legal team are seeking an order to appoint a special master to review the records obtained during the search; to block the further review of seized materials by the government until a special master is appointed; to require the Justice Department to provide a more detailed receipt for property and to require the government to return any item seized that was not within the scope of the search warrant.