WASHINGTON – The White House has rejected an attempt by Trump’s attorneys to withhold documents from Congress regarding the Jan.6 attack on Capitol ,, setting up a legal battle between former and current presidents over executive privilege.

In a letter to the National Archives obtained by NBC News, White House Counsel Dana Remus rejected an attempt by Trump’s attorneys to withhold documents requested by the House Select Committee regarding the then-president’s activities on Jan. 6, writing that “President Biden has determined that an assertion of executive privilege is not in the best interests of the United States, and therefore is not justified as to any of the documents.”

“These are unique and extraordinary circumstances,” Remus added. “Congress is investigating an attack on our Constitution and democratic institution provoked and fanned… and the conduct under investigation goes far beyond the typical deliberations about the proper discharge of President’s constitutional duties.”

The constitutional protections of executive privilege should not be used to shield, from Congress or the public, information that reflects a clear and apparent effort to subvert the Constitution itself.”

White House press secretary Jen Psaki had telegraphed the move two weeks ago, saying President Joe Biden had already concluded that it would not be appropriate to assert executive privilege related to Jan. 6 requests. Officials at the White House said they have not yet made any decisions regarding requests from the Select Committee and that they would do so on a case by case basis.

The White House has authorized the National Archives to hand over a first batch of documents that fall under the broad category request by the committee ,. This includes Trump’s rally at The Ellipse, White House grounds, as well as subsequent meetings and communications throughout Jan. 6. This request requested everything, including Twitter messages, visitor logs and videos, as well as photos and videos of Trump’s participation in events. It also contained documents and communications relating to Mike Pence’s movements, security, and any videos or photos of events he participated in.

According to a source familiar with the matter, the National Archives immediately began scouring records in its possession for items responsive to the committee’s request issued in August. Since then, it has been supplying relevant documents to Trump’s legal counsel and the Biden White House regularly. On Sept. 9, the specific set of documents was first provided to both sides. 8.

A White House official couldn’t identify the specific documents in that set. However, they did say that they would shed light on certain White House events on January 6. They claimed that Trump’s representatives had concluded executive privilege should be applied to some documents, but not all. Biden however has stated that privilege does not apply to any records.

Remus says in her letter that the White House is continuing to review other materials the archives have provided since then, and will respond “at an appropriate time.”

Trump, in a lengthy statement, sharply criticized the probe and accused Democrats of attempting “to use Congress to persecute their political opponents. “

” Their requests aren’t based in reality or law — it’s just an act to these politicians,” he stated. After issuing the statement Trump officially asserted executive privilege on the documents requested by committee. Trump highlighted roughly 40 records that he objects to being released, and also said he preemptively asserts executive privilege over others in the request that he hasn’t had time to review, citing a 1996 Justice Department legal opinion.

The National Archives must now notify the White House about Trump’s assertion. It’s likely that Biden will reject it again, which could lead to a legal challenge by Trump.

White House officials said to NBC News that they anticipated the assertion on Friday, as Remus had indicated in an earlier letter. Officials said that the administration will likely reiterate its waiver of privilege in a second letter.

Federal law allows former presidents to ask the current president for any documents from previous administrations that are kept by the National Archives. Trump could file a lawsuit against the National Archives, but that would be a long-term legal challenge.

The courts have not yet determined how much power former presidents have to claim the privilege after they have left office. Practically, however, the opinions of the current president are very important. The Supreme Court ruled in 1977 that the incumbent president “is in the best position to assess the present and future needs of the Executive Branch.”

What’s more, the privilege is not absolute. In determining whether the privilege should be applied, courts apply a balance test.

The Supreme Court also said the privilege is limited to communications “in performance of [a president’s] responsibilities,” which might not cover discussions of how to get the Justice Department to undermine confidence in the election results.

Image: Mike MemoliMike Memoli

Mike Memoli is an NBC News correspondent.

Pete Williams

Pete Williams is an NBC News correspondent who covers the Justice Department and the Supreme Court, based in Washington.

Hallie Jackson

and

Dartunorro Clark

contributed.