Archives apparently mislead Congress with respect to the Trump records, it seemingly violated the law........
Apr 11, 2023 11:57:29 #
https://aflegal.org/wp-content/uploads/2023/04/2023.04.10-AFL-NARA-OIG-FOIA-re-FBI-MAL-Docs.pdf
Biden White House “Special Access Request” for Trump Mar-a-Lago Records
Dear Acting Archivist Wall and Inspector General Baker:
This Freedom of Information Request is based on records released by the National
Archives and Records Administration on March 31, 2023.1 These emails and text
messages suggest that the Archives may have misled Congress regarding the nature
and extent both of its communications and coordination with Biden Administration
political officials and of the Biden White House’s role in the Federal Bureau of
Investigation’s raid of former President Donald Trump’s residence on August 8, 2022.
I. Background
On August 8, 2022, the FBI raided Mar-a-Lago purportedly on grounds that
additional records existed there that may have contained classified information.2
According to press reports, aides to President Biden “were stunned by the
development and learned of it from Twitter.”3 This is surprising given the evidence
showing that the FBI obtained access to these records through a special access
request from the Biden White House on behalf of the Department of Justice.
The Claim: The Archives’ Office of Inspector General Made a “Referral” to the FBI
In a February 18, 2022, letter to then-House Committee on Oversight and Reform
Chairwoman Carolyn B. Maloney, the Archives stated that upon discovering
classified information in fifteen boxes of presidential records and material provided
to it by former President Trump in January 2022, its “staff has been in
communication with the Department of Justice.”4
In an August 16, 2022, letter from Acting Archivist Wall to then-House Permanent
Select Committee on Intelligence Ranking Member Michael R. Turner, the Archives
provided new details regarding its communications with the Biden Department of
Justice.
Specifically:
When NARA identified items marked as classified national security
information within the 15 boxes, NARA referred this issue to the DOJ.
Since that time, the DOJ has been exclusively responsible for all aspects
of this investigation, and NARA has not been involved in the DOJ
investigation or any searches that it has conducted. Accordingly, NARA
is unable to provide a briefing or any documents in response to your
letter, and we refer you to the DOJ. Please note, however, that NARA is
preserving all records related to this matter.5
Notably, despite the Archives’ claim that it had “not been involved in the DOJ
investigation,” the documents show that the Archives’ official responsible for
administering all access requests for Presidential records, John Laster,6 was involved
in preparing the 15 boxes for FBI review as late as August 23, 2022:7
On October 25, 2022, Acting Archivist Wall wrote to then-Ranking Members James
Comer and Jim Jordan, claiming “NARA received the 15 boxes from President Trump
on January 18, 2022, and then discovered that they contained classified national
security information. Shortly after the discovery, NARA consulted with its Office of
Inspector General (OIG), which operates independently of NARA. As DOJ has
disclosed publicly in court filings, NARA’s OIG subsequently referred the matter to
DOJ on February 9, 2022.”8 If the OIG acted independently in making a referral to
the FBI, then Mr. Laster would not have involved himself in the FBI’s review of the
15 boxes in his capacity as the Director of the White House Liaison Division
“responsible for all access requests for Presidential records.”9
Similarly, the FBI affidavit before the U.S. District Court for the Southern District of
Florida that provided the probable cause for the issuance of a search warrant against
Mar-a-Lago on August 8, 2022, stated, “[on February 9, 2022] the Special Agent in
Charge of NARA’s Office of the Inspector General sent the NARA Referral via email
to DOJ.”10 However, the evidence is that the Biden White House and the Department
of Justice coordinated to obtain the Trump records, and perhaps create a pretext for
a law enforcement raid, by way of a “special access request.”
According to Acting Archivist Wall, the Department of Justice “ask[ed] the President
to request that NARA provide the FBI with access to the [fifteen] boxes,” and “[o]n
April 11, 2022, 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.”11 Acting Archivist Wall later confirmed to her staff that:
At issue was the request of the White House, on behalf of the
Department of Justice (DOJ), that NARA provide the FBI with access to
the 15 boxes, so that the FBI and others in the Intelligence Community
could examine them. When NARA receives such requests, we follow the
formal process established by the PRA, our regulations at 36 C.F.R. Part
1270, and Executive Order 13489, to provide the former President an
opportunity to review the responsive records for constitutionally based
privileges.12
According to internal emails, Gary Stern, the Archives’ General Counsel, also
confirmed that “the Justice Department, via the Biden White House, had made the
[special access] request.”13
The White House Lacks Legal Authority to Access Records on Behalf of the Justice
Department
There appear to be substantial discrepancies between what the Archives has told
Congress and what appears in its internal communications. Regardless, the fact that
the Archives was working with the Biden White House acting “on behalf of the”
Department of Justice raises legal concerns. The special access statute, 44 U.S.C. §
2205, authorizes special access to an incumbent President only when access to
presidential records is needed “for the conduct of current business.”14 Providing
documents to the DOJ for purposes of a criminal investigation is not the “current
business” of the White House. In fact, if the real party in interest was the Federal
Bureau of Investigation, and the real purpose was a criminal investigation of
improperly handled classified records, then, as a matter of law, the Archives should
have provided the Biden Justice Department with access to the Trump records only
“pursuant to subpoena or other judicial process issued by a court of competent
jurisdiction for the purposes of any civil or criminal investigation or proceeding.”15
Not only did the Archives apparently mislead Congress with respect to the Trump
records, it seemingly violated the law in order to accommodate the partisan Biden
White House.
II. Requested Records
Pursuant to the Freedom of Information Act (FOIA), 5 U.S.C. § 552, AFL hereby
requests access to the following records within twenty business days:
A. All records of the criminal referral from the Archives’ Office of Inspector
General to the Federal Bureau of Investigation.
B. All records relating to the existence of a record reflecting the Office of
Inspector General’s determination that a violation of Federal criminal law
occurred.16
C. All records relating to case number LW 2022-070.
D. All records of communications between the Archives and the White House
referring to a special access request for Presidential Records made under
44 U.S.C. § 2205(2).
E. All records of communications between the Archives and/or the Office of
Inspector General with the Department of Justice and any of its
components referring to a special access request for Presidential Records
made under 44 U.S.C. § 2205(2).
F. All records identifying the Archives’ staff involved in providing access to the
“15 boxes” referenced by Acting Archivist Wall in her email of August 24,
2022, Bates 15B001043-44, to the Federal Bureau of Investigation.
G. All communications between the Archives and/or the Office of Inspector
General with any person employed by the Department of Justice, the
Federal Bureau of Investigation, and/or the Executive Office of the
President regarding the “15 boxes” referenced by Acting Archivist Wall in
her email of August 24, 2022, Bates 15B001043-44.
H. All communications between the Archives and the Office of Inspector
General regarding the “15 boxes” referenced by Acting Archivist Wall in her
email of August 24, 2022, Bates 15B001043-44.
I. All records of or regarding the processing of items A – G, including but not
limited to all records of consultation, claims of privilege, and White House
or other agency equities.
~~The rest of this is at the link~~ https://aflegal.org/wp-content/uploads/2023/04/2023.04.10-AFL-NARA-OIG-FOIA-re-FBI-MAL-Docs.pdf
Biden White House “Special Access Request” for Trump Mar-a-Lago Records
Dear Acting Archivist Wall and Inspector General Baker:
This Freedom of Information Request is based on records released by the National
Archives and Records Administration on March 31, 2023.1 These emails and text
messages suggest that the Archives may have misled Congress regarding the nature
and extent both of its communications and coordination with Biden Administration
political officials and of the Biden White House’s role in the Federal Bureau of
Investigation’s raid of former President Donald Trump’s residence on August 8, 2022.
I. Background
On August 8, 2022, the FBI raided Mar-a-Lago purportedly on grounds that
additional records existed there that may have contained classified information.2
According to press reports, aides to President Biden “were stunned by the
development and learned of it from Twitter.”3 This is surprising given the evidence
showing that the FBI obtained access to these records through a special access
request from the Biden White House on behalf of the Department of Justice.
The Claim: The Archives’ Office of Inspector General Made a “Referral” to the FBI
In a February 18, 2022, letter to then-House Committee on Oversight and Reform
Chairwoman Carolyn B. Maloney, the Archives stated that upon discovering
classified information in fifteen boxes of presidential records and material provided
to it by former President Trump in January 2022, its “staff has been in
communication with the Department of Justice.”4
In an August 16, 2022, letter from Acting Archivist Wall to then-House Permanent
Select Committee on Intelligence Ranking Member Michael R. Turner, the Archives
provided new details regarding its communications with the Biden Department of
Justice.
Specifically:
When NARA identified items marked as classified national security
information within the 15 boxes, NARA referred this issue to the DOJ.
Since that time, the DOJ has been exclusively responsible for all aspects
of this investigation, and NARA has not been involved in the DOJ
investigation or any searches that it has conducted. Accordingly, NARA
is unable to provide a briefing or any documents in response to your
letter, and we refer you to the DOJ. Please note, however, that NARA is
preserving all records related to this matter.5
Notably, despite the Archives’ claim that it had “not been involved in the DOJ
investigation,” the documents show that the Archives’ official responsible for
administering all access requests for Presidential records, John Laster,6 was involved
in preparing the 15 boxes for FBI review as late as August 23, 2022:7
On October 25, 2022, Acting Archivist Wall wrote to then-Ranking Members James
Comer and Jim Jordan, claiming “NARA received the 15 boxes from President Trump
on January 18, 2022, and then discovered that they contained classified national
security information. Shortly after the discovery, NARA consulted with its Office of
Inspector General (OIG), which operates independently of NARA. As DOJ has
disclosed publicly in court filings, NARA’s OIG subsequently referred the matter to
DOJ on February 9, 2022.”8 If the OIG acted independently in making a referral to
the FBI, then Mr. Laster would not have involved himself in the FBI’s review of the
15 boxes in his capacity as the Director of the White House Liaison Division
“responsible for all access requests for Presidential records.”9
Similarly, the FBI affidavit before the U.S. District Court for the Southern District of
Florida that provided the probable cause for the issuance of a search warrant against
Mar-a-Lago on August 8, 2022, stated, “[on February 9, 2022] the Special Agent in
Charge of NARA’s Office of the Inspector General sent the NARA Referral via email
to DOJ.”10 However, the evidence is that the Biden White House and the Department
of Justice coordinated to obtain the Trump records, and perhaps create a pretext for
a law enforcement raid, by way of a “special access request.”
According to Acting Archivist Wall, the Department of Justice “ask[ed] the President
to request that NARA provide the FBI with access to the [fifteen] boxes,” and “[o]n
April 11, 2022, 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.”11 Acting Archivist Wall later confirmed to her staff that:
At issue was the request of the White House, on behalf of the
Department of Justice (DOJ), that NARA provide the FBI with access to
the 15 boxes, so that the FBI and others in the Intelligence Community
could examine them. When NARA receives such requests, we follow the
formal process established by the PRA, our regulations at 36 C.F.R. Part
1270, and Executive Order 13489, to provide the former President an
opportunity to review the responsive records for constitutionally based
privileges.12
According to internal emails, Gary Stern, the Archives’ General Counsel, also
confirmed that “the Justice Department, via the Biden White House, had made the
[special access] request.”13
The White House Lacks Legal Authority to Access Records on Behalf of the Justice
Department
There appear to be substantial discrepancies between what the Archives has told
Congress and what appears in its internal communications. Regardless, the fact that
the Archives was working with the Biden White House acting “on behalf of the”
Department of Justice raises legal concerns. The special access statute, 44 U.S.C. §
2205, authorizes special access to an incumbent President only when access to
presidential records is needed “for the conduct of current business.”14 Providing
documents to the DOJ for purposes of a criminal investigation is not the “current
business” of the White House. In fact, if the real party in interest was the Federal
Bureau of Investigation, and the real purpose was a criminal investigation of
improperly handled classified records, then, as a matter of law, the Archives should
have provided the Biden Justice Department with access to the Trump records only
“pursuant to subpoena or other judicial process issued by a court of competent
jurisdiction for the purposes of any civil or criminal investigation or proceeding.”15
Not only did the Archives apparently mislead Congress with respect to the Trump
records, it seemingly violated the law in order to accommodate the partisan Biden
White House.
II. Requested Records
Pursuant to the Freedom of Information Act (FOIA), 5 U.S.C. § 552, AFL hereby
requests access to the following records within twenty business days:
A. All records of the criminal referral from the Archives’ Office of Inspector
General to the Federal Bureau of Investigation.
B. All records relating to the existence of a record reflecting the Office of
Inspector General’s determination that a violation of Federal criminal law
occurred.16
C. All records relating to case number LW 2022-070.
D. All records of communications between the Archives and the White House
referring to a special access request for Presidential Records made under
44 U.S.C. § 2205(2).
E. All records of communications between the Archives and/or the Office of
Inspector General with the Department of Justice and any of its
components referring to a special access request for Presidential Records
made under 44 U.S.C. § 2205(2).
F. All records identifying the Archives’ staff involved in providing access to the
“15 boxes” referenced by Acting Archivist Wall in her email of August 24,
2022, Bates 15B001043-44, to the Federal Bureau of Investigation.
G. All communications between the Archives and/or the Office of Inspector
General with any person employed by the Department of Justice, the
Federal Bureau of Investigation, and/or the Executive Office of the
President regarding the “15 boxes” referenced by Acting Archivist Wall in
her email of August 24, 2022, Bates 15B001043-44.
H. All communications between the Archives and the Office of Inspector
General regarding the “15 boxes” referenced by Acting Archivist Wall in her
email of August 24, 2022, Bates 15B001043-44.
I. All records of or regarding the processing of items A – G, including but not
limited to all records of consultation, claims of privilege, and White House
or other agency equities.
~~The rest of this is at the link~~ https://aflegal.org/wp-content/uploads/2023/04/2023.04.10-AFL-NARA-OIG-FOIA-re-FBI-MAL-Docs.pdf
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