“This court should refuse to allow the naked political tricks of the accused and preserve the institution of the presidency,” writes Binnall.
In his argument, Binnall falsely claimed that “both the FBI and the Senate have confirmed that there was no coordinated effort, including in the White House, to overturn the January 6 election”.
Reuters reported in August that the FBI had found “little” evidence to date that there was a larger conspiracy beyond small pockets of militia groups, and Binnall cited that report, that of “four current and former law enforcement officers” as evidence to support his claim came from. But the FBI did not confirm this conclusion, and the January 6th committee specifically denied this claim.
But the FBI has not drawn such an official conclusion, and lawmakers have insisted that it is not.
“We have received replies and briefings from the relevant authorities and it has been made clear to us that reports of such a conclusion are unfounded,” Committee Chairs, Bennie Thompson and Liz Cheney, said in a statement on Jan. 6 Last month.
Binnall also cited a report from a Senate committee on security flaws as evidence that the Senate has agreed that there is no conspiracy. However, the Senate committee investigating the Capitol security collapse focused its review specifically on law enforcement agencies such as the Capitol Police and the National Guard and declined to expand its remit to include Trump’s activities. Members stressed that they would have left this part of the investigation to others.
Chutkan has called a hearing on the matter on Thursday. The National Archives have submitted their own letter, written by Justice Department attorneys, detailing the documents Trump is trying to withhold from investigators. This includes records from senior officials such as former chief of staff Mark Meadows, former advisor Stephen Miller, and former attorney Patrick Philbin. This also includes draft language as well as call and visitor logs.
In supporting the release of the recordings to Congress, Biden said he declined to privilege Trump because of the unprecedented nature of the attacks and questions about the White House’s involvement under Trump.
Binnall says that many of these documents are precisely those that are meant to be protected from publication, and that many are irrelevant to the House of Representatives investigation or any laws that might result from them.
“The documents in question include legal documents, call logs, timetables and informational materials that are clearly privileged and irrelevant for the purposes of counter-terrorism legislation, presidency changes or other laws,” he writes. “The committee has never explained how the president’s schedule, call logs, legal documents, or other informational materials will aid it in developing laws to protect the United States or ensure the peaceful transfer of power.”
However, the House of Representatives, the National Archives and other experts on executive privilege have argued that this argument fails because executive privilege applies only to the incumbent president who is charged with making decisions to protect the office. While a past president may have an interest in exercising the privilege of keeping records, there is no supporting jurisprudence that would allow a past president to override his successor on such matters. This would create a “shadow presidency”, say the experts.
Binnall said these arguments do not explain the need to protect sincere advice to presidents long after their term ends – or otherwise risk undermining openness in future presidencies.
“It is true that executive privileges are qualified, not absolute,” he writes. “By the way, there is no other privilege. But the rights of former presidents are not tossed aside as easily as the defendants claim. “