Page:DOJ Response to Special Master.pdf/6

Rh provided then, however, because a representative of the former President requested an extension of the production date to April 29. See id.

As the Acting Archivist recounted, on April 29, DOJ advised counsel for the former President as follows:

"There are important national security interests in the FBI and others in the Intelligence Community getting access to these materials. According to NARA, among the materials in the boxes are over 100 documents with classification markings, comprising more than 700 pages. Some include the highest levels of classification, including Special Access Program (SAP) materials. Access to the materials is not only necessary for purposes of our ongoing criminal investigation, but the Executive Branch must also conduct an assessment of the potential damage resulting from the apparent manner in which these materials were stored and transported and take any necessary remedial steps. Accordingly, we are seeking immediate access to these materials so as to facilitate the necessary assessments that need to be conducted within the Executive Branch."

See id.

On the same date that DOJ sent this correspondence, counsel for the former President requested an additional extension before the materials were provided to the FBI and stated that in the event that another extension was not granted, the letter should be construed as “‘a protective assertion of executive privilege made by counsel for the former President.’” Id. In its May 10 response, NARA rejected both of counsel’s requests. First, NARA noted that significant time—four weeks—had elapsed since NARA first informed counsel of its intent to provide the documents to the FBI. Id. Second, NARA stated that the former President could not assert executive privilege to prevent others within the Executive Branch from reviewing the documents, calling that decision “not a close one.” Id. at 3. NARA rejected on the same basis counsel’s “‘protective assertion’” of privilege. Id. at 3–4. Accordingly, NARA informed counsel that it would provide the FBI access to the records beginning as early as Thursday, May 12, 2022. Id. at 4. Although the former President could have taken legal action prior to