Right-wing media erroneously claim Biden “facilitated” search of Mar-a-Lago

 CYDNEY HARGIS & CHARIS HOARD/Media Matters

In their latest attempt to dismiss the hundreds of classified documents found at Mar-a-Largo, right-wing media coalesced around a bogus claim that President Joe Biden “facilitated” the search by rejecting former President Donald Trump’s executive privilege. 

On August 8, the FBI executed a judge-approved search warrant of Trump’s Mar-a-Lago residence as part of an investigation into possible mishandling of classified documents. Earlier this year, reports surfaced that the National Archives and Records Administration had retrieved 15 boxes of White House records from Mar-a-Lago in January, some of which contained classified materials. 

According to a recent report from The New York Times, over 300 classified documents have been seized from Trump’s Florida property over the course of three searches since January. Trump has since filed a motion asking for a special master to review the documents seized by the FBI, which would block the Department of Justice from further reviewing the documents until that third-party arbitrator is appointed, and return any property not within the scope of the search warrant. If a federal judge approves Trump’s request, it could delay a federal criminal investigation into whether Trump violated the Espionage Act and the Presidential Records Act. 

The August 8 search came after months of reported resistance from the Trump team; according to a May 10 letter from U.S. Acting Archivist Debra Steidel Wall to Trump lawyer Evan Corcoran released this week, Trump tried to delay the FBI’s review of the retrieved records and his lawyers consistently asked for more time to determine if the records included documents they considered protected by executive privilege. In the letter, Steidel Wall wrote that government lawyers determined that executive privilege rests with the current president, not a former one, and that Biden “defers to [her] determination” whether the FBI could view the records. After consulting with the Department of Justice, she ultimately decided not to honor Trump's claim of executive privilege, which allowed the FBI to begin viewing the documents. 

On Monday, August 22, conservative journalist and Trump liaison to the National Archives John Solomon published the Steidel Wall-Corcoran letter on his website Just the News in an attempt to prove that the Biden White House sparked the investigation by choosing to waive executive privilege. Despite zero evidence, right-wing media ran with the report and accused Biden of “siccing the FBI” on his political opposition.

Legal experts dispute Trump’s claims, and historical context confirms executive privilege can be revoked 

Conservative media have repeatedly framed rejecting Trump's claim of executive privilege as an extreme step that ignited the FBI's search of his Florida residence. This view ignores the fact that the former president was under investigation for mishandling classified documents for months prior to Steidel Wall's decision, that the current administration is well within its right to reject claims of executive privilege, and that the Biden administration is not the only one to have done it. 

• National security lawyer Bradley Moss: “Ironically, Trump’s media guy shows how NARA was bending over backwards for Trump before it finally gave the FBI access to the classified records.” [Twitter, 8/23/22]  
• Executive privilege is for the benefit of the republic, not the individual. According to forum Just Security, which provides legal analysis and is based out of the New York University Law School, the 1977 Supreme Court case Nixon v. GSA made it clear that executive privilege is “a governmental privilege, not a personal privilege.” Executive privilege, therefore, can be waived by the current president, even if it is asserted by the former president, especially when such a veto would benefit the enforcement of existing laws and statutes — such as the ones at question in the ongoing FBI investigation. [Just Security, 11/4/21]
• The Supreme Court ruled that executive privilege is not unlimited, even for a sitting president. In the 1974 case United States v. Nixon, the Supreme Court found that the current president’s communications with advisers pertaining to “the process of shaping policies and making decisions” were privileged. However, that privilege yielded to a special prosecutor's need to obtain evidence as part of a criminal investigation. [Time, 10/8/21]
• Biden is not the only president to reject a former president’s claims of executive privilege. Former President George W. Bush invoked executive privilege over White House documents related to the CIA’s advanced interrogation techniques. However, in 2014, former President Barack Obama rejected the privilege claim and released the documents as part of an ongoing court case. [Just Security, 9/30/21]

Right-wing media still baselessly claim that Biden “facilitated” the FBI’s search

• Fox host Sean Hannity: “The Biden White House in fact actually facilitated the DOJ’s probe against” Trump. During the August 23 edition of his Fox News show, Hannity cited Solomon’s article to claim that the White House “facilitated” the search at Mar-a-Lago by waiving Trump’s claim of executive privilege. Hannity said that in doing so, the Biden administration “was actively paving the way for the FBI’s investigation into documents from Trump’s time as president that Trump had every legal right to possess.” [Fox News, Hannity, 8/23/22]
• Fox’s Tucker Carlson: “If you have a political opponent, you just imprison him.” During the August 23 edition of Tucker Carlson Tonight, host Tucker Carlson implied the Solomon report confirmed what he knew all along — that the Biden administration coordinated with the DOJ on the criminal probe into Trump. Carlson concluded that Trump is running for president in 2024 and “they want to stop him. It’s what you do in the third world. If you have a political opponent, you just imprison him.” [Fox News, Tucker Carlson Tonight, 8/23/22]
• Fox’s Jesse Watters: “Joe Biden has now been directly implicated in the raid on Mar-a-Lago.” Fox host Jesse Watters cited Solomon’s article during the August 23 edition of his show, Jesse Watters Primetime, to try claiming the president was “implicated in the raid” in Florida. Watters asserted that because Biden waived Trump’s claim of executive privilege, “that set the raid in motion.” Watters went on to say that “Biden’s White House had the chance to calm things down, but instead they set fire to Trump’s executive privilege and triggered a raid on his house.” [Fox News, Jesse Watters Primetime, 8/23/22]
• Hannity: Biden personally intervened “to undermine President Trump’s claims of executive privilege.” During the August 23 edition of Premiere Radio Networks’ The Sean Hannity Show, Hannity baselessly claimed that John Solomon’s documents conclusively prove that Biden pushed his Department of Justice to “investigate records stored at” Mar-a-Lago with “President Biden personally intervening to undermine President Trump’s claims of executive privilege.” [Premiere Radio Networks, The Sean Hannity Show, 8/23/22]
• Hannity asked Solomon if the DOJ’s “ultimate goal” is to arrest and charge Trump. During that same episode, Hannity conducted an interview with Solomon, asking if the Biden administration’s “ultimate goal here is to arrest Donald Trump and charge Donald Trump.” Solomon replied that there isn’t enough evidence to know yet, but laid out a timeline that implied the administration waived Trump’s executive privilege in order to “[raid] his home.” Hannity responded that the people running this investigation are “the same liars that have been there since the day he came down the escalator.” [Premiere Radio Networks, The Sean Hannity Show, 8/23/22]
• Solomon: “Joe Biden himself was at the ignition point of this investigation.” During the August 23 edition of War Room: Pandemic, Solomon told host Steve Bannon that Biden “was at the ignition point of this investigation.” He went on to baselessly claim that Biden was “involved in siccing the FBI on his — on the leader of the political opposition party.” [Real America’s Voice, War Room: Pandemic, 8/23/22]
• Mark Levin: “I knew it; Biden knew, the White House knew, they’re all behind it.” On his show Monday night, Mark Levin spoke about Solomon’s article, saying that “the memos provide the most definitive evidence to date of the current White House’s effort to facilitate a criminal probe of" Trump. He continued to dramatize the extent of the White House’s involvement, such as “eliminating one of the legal defenses that Trump might use to fight the FBI over access to his documents,” referring to the Biden administration’s denial of Trump’s claim on executive privilege. [Westwood One, The Mark Levin Show, 8/22/22]
• Trump: “They Knew Everything.” In a post on Truth Social on Tuesday, the former president stated that he was told the White House “[was] NOT INVOLVED. … & that they didn’t know anything at all about the Break-In of Mar-a-Lago.” Trump also praised the “great reporting” of Solomon, saying that Solomon’s reporting on the subpoena documents revealed how the Biden administration in fact “led the charge” on the searches of Mar-a-Lago. [The Gateway Pundit, 8/23/22]
• The Daily Caller claimed the White House “was involved with the DOJ probe” into classified documents at Mar-a-Lago. The Daily Caller relied entirely on Solomon’s reporting in an August 23 article that claimed Biden was involved in the FBI search. The Daily Caller went on to write that waiving executive privilege “effectively eliminated a legal defense” for Trump. [The Daily Caller, 8/23/22]