Scoop: Trump denies 9 former Biden aides executive privilege
The Trump White House has decided that nine former senior Biden aides won't be protected by executive privilege during their interviews for a congressional probe into Joe Biden 's mental fitness for office.
Why it matters: The White House's move means the former Biden aides will have to answer questions about their private conversations with Biden, unless they or Biden try to challenge the decision in court.
Republicans have launched four separate investigations into Biden, 82. They're examining whether his declining health affected his abilities in the White House, and allegations that his staff helped cover up his decline.
Driving the news: Trump's White House sent a letter Tuesday waiving executive privilege for former adviser Neera Tanden, according to a White House official.
The White House told Tanden's lawyers that invoking executive privilege is not "in the national interest" given the "exceptional circumstances," according to a copy of the letter obtained by Axios.
Trump has decided to do the same for eight other former top Biden aides the GOP-led House Oversight Committee plans to interview.
They include Jill Biden's adviser Anthony Bernal along with Joe Biden's advisers Annie Tomasini, Ashley Williams, Mike Donilon, Anita Dunn, Ron Klain, Bruce Reed and Steve Ricchetti, a person familiar with the matter told Axios.
The letter to Tanden cited the probe of Biden's mental and physical decline in office by the House Oversight panel, which began interviewing former Biden aides on Tuesday — starting with Tanden, who was the domestic policy adviser.
"Evidence that aides to former President Biden concealed information regarding his fitness to exercise the powers of the President — and may have unconstitutionally exercised those powers themselves to aid in their concealment — implicates both Congress' constitutional and legislative powers," Trump's deputy White House counsel, Gary Lawkowski, wrote in the letter sent to Tanden's lawyers.
A Biden spokesperson declined to comment.
In a draft of her opening statement, Tanden said she had only "periodic discussions" with Biden after May 2023, but that she had "no experience in the White House that would provide any reason to question his command as president."
The big picture: Presidents normally have maintained the right of executive privilege for their predecessors and their advisers as a means of protecting the executive branch — even when previous presidents have been from a different party.
"It's highly unusual," Jonathan Shaub, an associate professor at University of Kentucky Law School who has written extensively on executive privilege, told Axios.
"The norm as an institutional matter is that a current president will protect executive privilege of previous presidents."
There was a recent exception.
In late 2021, Biden's White House waived executive privilege for former Trump aides who were being investigated by the select House panel that examined the Jan. 6 riot at the Capitol and Trump's efforts to overturn the 2020 election.
Then-White House counsel Dana Remus wrote that Biden had determined that "an assertion of executive privilege is not in the best interests of the United States."
Between the lines: Some of the language in the letters prepared by Trump's team mirrors Remus' justifications.
"The letter [to Tanden] is strikingly similar in its stated reasoning to a past Biden refusal to support a claim of executive privilege by then-former President Trump," Mark J. Rozell, dean of George Mason University's school of policy and government and an expert on executive privilege, told Axios.
"Could it be more than a little vindictive?"
"This might be one of the only times President Trump hasn't tried to ratchet up presidential powers," said Mitchel Sollenberger, a political science professor at University of Michigan-Dearborn who also has written extensively on presidential power and executive privilege.
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