The Justice Department promised the Trump White House that its hard drives won't be handed over to Joe Biden
Robin Bravender and Darren Samuelsohn
The Justice Department has quietly assured President Donald Trump's lawyers that any presidential records left behind on hard drives in the White House will not become the property of the Biden administration.
Instead, the US archivist and not incoming President Joe Biden will be in control of any electronic records that remain on hardware inside the Executive Office of the President after the new Democratic president's inauguration on Wednesday, according to a memorandum opinion issued Friday by Deputy Assistant Attorney General Devin DeBacker.
The 6-page DOJ memo issued during the closing days of the Trump administration comes during one of the most tumultuous presidential transitions in US history and as Trump still refuses to concede that Biden fairly won the election. Biden told reporters last month he doesn't have a clear picture of "what landmines are laid out there" by the outgoing president and his team.
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Its late arrival is also troubling to some legal experts who see the DOJ-approved language as an attempt to further hamstring Biden's access to important information about the last administration.
Neil Eggleston, who served as White House counsel to President Barack Obama during the 2017 transition to the Trump administration, told Insider that the request for the memo likely reflected a "lack of competence" by Trump's team when it came to sending records "in a timely fashion to the archivist."
Eggleston said he is worried that Trump's lawyers will use the opinion "to claim an overly broad exclusion from the right of the Biden administration to access documents critical for the continuity of government," he told Insider on Monday.
The new opinion on presidential recordkeeping came out of the Office of Legal Counsel, a critical branch of DOJ that is frequently asked to weigh in on the legality of decisions from the president, the White House and also other executive agencies.
OLC during the Trump administration has published many opinions favorable to the president and against the wishes of Democrats trying to exert oversight of the controversial administration. That includes memos that rejected the validity of the 2019 House-led impeachment effort, as well as opinions used to thwart Democrats from seeing key sections of the final report issued by special counsel Robert Mueller, obtaining testimony from top White House officials and also to review the president's tax returns via subpoena.
The opinion is addressed to an unnamed Trump deputy counsel at the White House and responds to questions asked of the Justice Department about who takes charge of the lame duck president's hard drives.
"You have asked whether the Archivist has responsibility for custody and control of, and access to, the outgoing President's electronic records, even if such records temporarily remain on EOP hardware until the completion of their transfer to" the National Archives and Records Administration, says DeBacker's DOJ opinion.
DeBacker started at DOJ last August and previously worked for 17 months in the White House counsel's office under Pat Cipollone.
Executive privilege
When a president leaves office, their White House records become the property of the National Archives under a 1978 law called the Presidential Records Act. Congress, the courts, and the Biden administration will have special access to Trump's documents under the law, although they'll have to go through the archivist.
Trump and his attorney can still try to withhold documents by claiming executive privilege.
DOJ's opinion comes amid a chaotic end to the Trump administration where the president refused to concede his election loss and where many of his staffers have been working remotely during the COVID-19 pandemic.
Previous presidents have also left documents behind when they left the White House, according to the DOJ memo.
"In two of the previous three transitions, a substantial quantity of the outgoing President's electronic presidential records temporarily remained on EOP hardware for months after the incoming President took office until the transfer of those records to NARA was complete," the document says.
It appears Trump's team wanted to make it abundantly clear that Biden and his aides aren't entitled to use Trump's leftover documents, said Timothy Naftali, a history professor at New York University and former director of the Richard Nixon Presidential Library and Museum.
"This document seems to be a product of the most selfish, destructive presidential transition in American history," he said.
White House spokesman Judd Deere did not respond to a request for comment about why the DOJ opinion was issued. The Justice Department's press office also did not respond to requests for comment on Monday.
Past presidents have provided copies of some records — including national security information — to help the new administrations, Naftali said. But the White House request to the Justice Department suggests that the outgoing Trump team may not even do that.
"This is to prevent the Biden administration from accessing Trump's materials outside of the Presidential Records Act," he said.
Naftali noted that an upcoming impeachment trial in the Senate will likely include requests for Trump's official records, and he didn't think the DOJ opinion issued on Friday would affect that access.
The Biden transition team did not immediately respond to a request for comment.
The Archives press office told Insider earlier this month that it had been working with the administration and the Defense Department to coordinate the transfer of records and gifts from White House to storage, but that the delay of presidential transition funding slowed the process.
Trump's administration didn't kick off the transition until more than two weeks after the 2020 election, despite Biden clearly winning and with the president repeatedly losing legal challenges to contest that outcome.
Even though the transfer of Trump's records won't be completed until after Biden's inauguration, the National Archives and Records Administration will still assume legal custody of them on that day.
