WASHINGTON ― Former President Donald Trump’s attempts to hide his actions from the congressional committee investigating the Jan. 6 attack on the U.S. Capitol, which he incited, would need the cooperation of Joe Biden, the man he claims is not the legitimate president ― and that cooperation will not be coming.
“The president has already concluded that it would not be appropriate to assert executive privilege,” White House press secretary Jen Psaki said Friday.
After the House select committee announced it was issuing subpoenas to four of Trump’s former aides, Trump declared in a rambling statement Thursday night: “We will fight the Subpoenas on Executive Privilege and other grounds, for the good of our Country.”
But Trump is no longer president, and, legal experts agree, can no longer assert that privilege.
“There’s a reason that it’s called executive privilege: because it belongs to the executive branch. The last time I checked, Joe Biden was in charge of that branch, not Donald Trump,” said Norm Eisen, who served as an ethics lawyer in the Barack Obama White House and more recently worked for the House committee overseeing Trump’s first impeachment.
Indeed, Trump would need to request that Biden ― whom Trump insults and belittles on a near-daily basis ― tell the House committee that communications between Trump and his former staff were out of bounds.
Trump’s office did not respond to HuffPost queries about whether he has made any such request, but Psaki said Friday that she was not aware of one. “We don’t get regular outreach from the former president or his team,” she said.
More important, though, she added that Biden was not inclined to go along with such a request even if it did come. “We take this matter incredibly seriously,” she said. “We have been working closely with congressional committees and others as they work to get to the bottom of what happened on Jan. 6, an incredibly dark day in our democracy.”
A former Trump White House lawyer said jettisoning the long-standing principle that presidents should be able to get candid advice from their advisers without worrying about it becoming public as soon as the opposing party next wins the presidency would be bad for the institution.
“Executive privilege either applies or it doesn’t apply. If President Trump communicated with his advisers about the ongoing events on Jan. 6, those communications are privileged,” the former Trump aide, who is not involved in Trump’s defense now, said on condition of anonymity. “It would be a dangerous precedent if the Biden team decided for political purposes to ignore that privilege.”
Legal experts, though, said that allowing a president to plan and carry out an attempt to overthrow a lawful election to remain in power and not face any consequences would be even more dangerous.
“The compelling interest of both Congress and the Justice Department in investigating attempted coups, failed insurrections and criminal violations of federal election laws would suffice to overcome even an applicable claim of executive privilege,” said Laurence Tribe, a constitutional law professor at Harvard.
The committee issued subpoenas for former “chief strategist” Steve Bannon, former Department of Defense official Kashyap Patel, Trump’s social media aide Dan Scavino and, potentially most significant, Trump’s last chief of staff, Mark Meadows.
Meadows frequently pushed Trump’s lies that the election had been “rigged” and “stolen” from him, and was instrumental in Trump’s attempt to coerce Georgia elections officials to “find” enough votes to reverse Biden’s win there. That incident is under criminal investigation by Georgia prosecutors.
Legal experts agreed that Trump will almost certainly sue to block release of records to the House committee but would also almost certainly lose.
Eisen pointed out that Richard Nixon tried to keep his recordings of White House conversations secret but lost that case in the U.S. Supreme Court. And Glenn Kirschner, a former federal prosecutor, said those seeking the records would also be able to argue that plotting something illegal ― such as overthrowing democracy ― should not be protected by executive privilege.
“The crime-fraud exception would negate, or trump, any attempted claim of executive privilege,” Kirschner said.
In his statement, which included a 122-word opening sentence, Trump repeated his frequent attacks against the numerous investigations he faced during his term in office. “The ‘Unselect Committee’ of highly partisan politicians, a similar group that perpetrated the now proven lie of Russia, Russia, Russia, Ukraine, Ukraine, Ukraine, Impeachment Hoax #1, Impeachment Hoax #2, and many other Scams, has sent out Harassment Subpoenas on Jan. 6th,” he wrote.
In fact, every single one of the investigations was grounded in Trump’s actual conduct. Trump accepted Russian help to win the 2016 election, even though he knew at the time it was Russian assistance. He tried to extort Ukraine’s leader into helping his 2020 reelection bid, the basis of his first impeachment by the House. And he tried to overthrow American democracy to retain power after losing that reelection, which culminated in the Jan. 6 assault on the Capitol, which was the basis for his record second impeachment. Senate Republicans declined to convict Trump in either impeachment.
Trump spent weeks attacking the legitimacy of the Nov. 3 election he lost, starting his lies in the predawn hours of Nov. 4 that he had really won in a “landslide” and that his victory was being “stolen” from him. Those falsehoods continued through a long string of failed lawsuits challenging the results in a handful of states.
Trump and some of his advisers even discussed using the United States military by invoking the Insurrection Act or declaring martial law to retain power, including by seizing voting machines and ordering “re-votes” in states narrowly won by Biden.
But military leaders had earlier made it clear they would not involve themselves in the political process, so after the Electoral College finally voted on Dec. 14, making Biden’s win official, Trump instead turned to a last-ditch scheme to pressure his own vice president into canceling the ballots of millions of voters in a handful of the states Biden won and declaring Trump the winner during the pro forma congressional certification of the election results on Jan. 6.
Trump asked his followers to come to Washington that day and then told the tens of thousands who showed up at his rally near the White House to march on the Capitol to intimidate Pence into doing what Trump wanted.
His mob of supporters attempted to do just that by storming the building. They even chanted “Hang Mike Pence” after Pence refused to comply with Trump’s demands to overturn the election.
A police officer died after being assaulted during the insurrection, and four other officers took their own lives in the days and weeks that followed. One of the rioters was fatally shot as she climbed through a broken window into an anteroom containing still-evacuating House members, and three others in the crowd died during the melee.
Though the House impeached Trump for inciting the attack, all but seven Senate Republicans, led by their leader, Kentucky’s Mitch McConnell, chose not to convict him ― thereby letting Trump continue his political career.
Trump and his allies are now engaged in a campaign to portray the rioter who was killed, Ashli Babbitt, as a martyr and the hundreds of others who have been arrested as victims of political persecution.
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