“The Counsel to the President has informed me that, in light of the particular circumstances presented here, President Biden defers to my determination, in consultation with the Assistant Attorney General for the Office of Legal Counsel, regarding whether or not I should uphold the former President’s purported ‘protective assertion of executive privilege,'” Wall wrote.
Wall notified Trump in May that the National Archives would give the FBI access to the records in question.
“I have concluded that there is no reason to grant your request for a further delay before the FBI and others in the Intelligence Community begin their reviews,” Wall wrote to Trump in May. “Accordingly, NARA will provide the FBI access to the records in question, as requested by the incumbent President, beginning as early as Thursday, May 12, 2022.”
Administration officials privately defend the document review process, saying the Justice Department, by law, cannot make unilateral decisions about executive privilege, and that, ultimately, the sitting president decides. Those officials said Biden’s decision to defer to NARA and the DOJ was fully consistent with his executive authority.