White House won’t assert privilege over Meadows documents

President Biden’s White House does not plan to shield documents related to former President Trump’s ex-chief of staff Mark Meadows from the House committee investigating the Jan. 6 attack on the U.S. Capitol.

White House deputy counsel Jonathan Su penned a letter to Meadows’s attorney on Thursday notifying him that President Biden would not assert executive privilege over the documents requested by the committee from Meadows, citing a “compelling need” by Congress to access the documents in the course of its investigation into the deadly attack. 

“The President believes that the constitutional protections of executive privilege should not be used to shield information reflecting an effort to subvert the Constitution itself, and indeed believes that such an assertion in this circumstance would be at odds with the principles that underlie the privilege,” Su wrote in the letter, a copy of which was obtained by The Hill.  

“Consistent with President Biden’s determination that an assertion of privilege is not justified with respect to testimony and documents relating to these particular subjects, he has determined that he will not assert executive privilege with respect to your client’s deposition testimony on these subjects, or any documents your client may possess that bear on them,” Su wrote. “For the same reasons, underlying his decisions on executive privilege, President Biden has determined that he will not assert immunity to preclude your client from testifying before the Select Committee.”

The committee in August asked the National Archives to turn over “all documents and communications within the White House on January 6, 2021, relating in any way” to Meadows, along with a long list of other White House employees.

Thursday’s letter, which was first reported by The Washington Post, comes as Meadows is still said to be engaging with the committee but arrived well past the Oct. 15 deposition date listed in his subpoena. Su wrote that he was responding to an Oct. 11 letter from Meadows’s attorney concerning a subpoena from the select committee.  

The letter is similar to previous communications in which the White House has rejected Trump’s claims of privilege over documents and instructed the National Archives to turn over sets of documents to the Jan. 6 committee. Trump has sued the committee in order to block the release of the documents, arguing that the request is both overly broad and that the committee had not demonstrated a legitimate legislative purpose that would override his privilege claims.

He has also directed his former aides not to cooperate with the committee.

George Terwilliger, Meadows’s attorney, suggested in a statement that Meadows would not comply with the committee’s demands until legal disputes were resolved.

“Contrary to decades of consistent bipartisan opinions from the Justice Department that senior aides cannot be compelled by Congress to give testimony, this is the first president to make no effort whatsoever to protect presidential communications from being the subject of compelled testimony,” he wrote.

“Mr. Meadows remains under the instruction of former President Trump to respect longstanding principles of executive privilege. It now appears the courts will have to resolve this conflict.”  

Rep. Bennie Thompson (D-Miss.), the chairman of the Jan. 6 committee, blasted the lawyer’s response, saying “there is no valid legal basis for Mr. Meadows’s continued resistance to the Select Committee’s subpoena.”

“As such, the Select Committee expects Mr. Meadows to produce all responsive documents and appear for deposition testimony tomorrow, November 12, 2021, at 10:00 a.m. If there are specific questions during that deposition that you believe raise legitimate privilege issues, Mr. Meadows should state them at that time on the record for the Select Committee’s consideration and possible judicial review,” Thompson said in a letter to Terwilliger on Thursday.

Johnson added that the panel would “view Mr. Meadows’s failure to appear at the deposition, and to produce responsive documents or a privilege log indicating the specific basis for withholding any documents you believe are protected by privilege, as willful non-compliance,” adding such a move “would force the Select Committee to consider invoking the contempt of Congress procedures … as well as the possibility of having a civil action to enforce the subpoena” against Meadows.

The Jan. 6 committee has steadfastly pushed back on any claims of executive privilege from Trump, arguing he no longer retains such privileges now that he is no longer in office.

That position was upheld by a federal court on Tuesday, with U.S. District Judge Tanya Chutkan writing in reference to Trump that “Presidents are not kings, and plaintiff is not President.”

The Trump legal team on Thursday filed a motion seeking to block Chutkan’s order — all in an effort to block release of a large batch of Trump’s presidential records set to be released to the committee on Friday.

If Meadows bucks the committee, he could face similar consequences as Stephen Bannon, Trump’s onetime White House strategist, who was censured by Congress after failing to appear before the committee. The Justice Department has not yet announced whether they will follow the House’s recommendation to pursue criminal charges against Bannon.

Other witnesses have also presented difficulty for the committee.

Last week Jeffrey Clark, a former mid-level Justice Department attorney at the center of Trump’s pressure campaign at the Justice Department, only briefly met with the committee’s investigators last week. Trump weighed installing Clark as acting attorney general as he worked to pressure Justice Department leadership to involve the department in Trump’s election battles. 

During the meeting Clark and his attorney suggested that he also should be covered by executive privilege, despite any such claim from Trump directly. Clark then failed to return to the committee later that afternoon.

“His refusal to answer questions about the former President’s attempt to use the Department of Justice to overturn the election is in direct contrast to his supervisors at the Department, who have come in and answered the committee’s questions on these important topics,” Thompson said in a statement Friday.

“I have considered Mr. Clark’s claim of privilege and rejected it. He has a very short time to reconsider and cooperate fully. We need the information that he is withholding and we are willing to take strong measures to hold him accountable to meet his obligation.”

Updated at 7:59 p.m.