Former lawmakers sign brief countering Trump’s claims of executive privilege in Jan. 6 investigation

A group of more than 60 former lawmakers have joined a legal brief that encourages a federal judge to dismiss former President Trump’s claims of executive privilege as they relate to the investigation into the Jan. 6 attack on the Capitol.

The brief, as first reported by Politico, argues that Congress’s need for documents related to the Jan. 6 riot takes precedence over any potential claim of executive privilege by Trump, especially considering the president is a target of the probe.

“Congress’s power to do so here is not reduced — and is likely elevated — where the targets of the investigation include a former President and sitting Members of Congress,” the 21-page brief, which entered the D.C. federal district court docket on Friday, reads.

“Under these circumstances, no personal interests of Mr. Trump or disputed and unresolved questions of executive privilege could possibly tilt the scales against disclosing these records to the Select Committee,” the brief adds.

The coalition of 66 lawmakers — made up of 24 Republicans and 42 Democrats — argues that Trump played an “outsized role” in the lead up to the deadly attack.

“From what is publicly known, it is clear that (1) Donald Trump played an outsized — and likely central — role in orchestrating the events that gave rise to the January 6th attack,” the lawmakers wrote.

“And (2) the various means he used or contemplated are documented in the records the Committee seeks and are still not known,” they added.

The brief was filed under the purview of Protect Democracy, a nonprofit government watchdog.

Protect Democracy has contended that Congressional lawmakers need to completely understand what happened on Jan. 6 in order to adequately write legislation that responds to the attack, according to Politico.

Trump filed lawsuits against the House Jan. 6 select committee and the National Archives in an effort to prevent records from his time in the White House being released to the investigative panel.

The select committee and National Archives and Records Administration are scheduled to submit a response to the lawsuits by Friday, then U.S. District Judge Tanya Chutkan is set to hear the case next week, according to Politico.

Trump is arguing that his records are protected by executive privilege.

“As it relates to any materials being sought in situations like this, where fundamental privileges and constitutional issues are at stake and where a committee has declined to grant sufficient time to conduct a full review, there is a longstanding bipartisan tradition of protective assertions of executive privilege designed to ensure the ability to make a final assertion, if necessary, over some or all of the requested material,” the lawsuit reads.

The president has also argued that the request for documents from the committee is too large to be lawful, lacks a legislative justification and would decrease privilege protections for future presidents, according to Politico.

President Biden, however, has already rejected a number of Trump’s claims of executive privilege, concluding that the former president’s assertion of privilege “is not justified.”

The former lawmakers also write in the brief that Trump’s authority to claim executive privilege should only be allowed for actions taken in his official presidential capacity, and not efforts he made that related to the campaign trail, according to Politico.

“And as Senate Minority Leader [Mitch] McConnell explained, the efforts to overturn the election were not the official acts of a President; they were ‘a disgraceful dereliction of duty,’” the brief reads. “The executive privilege does not apply, thus ending the inquiry and dooming the motion presently before the Court.”

Former Reps. Carlos Curbelo (R-Fla.), Reid Ribble (R-Wis.), Henry Waxman (D-Calif.), Joseph Crowley (D-N.Y.), Barney Frank (D-Mass.), Bruce Braley (D-Iowa), John Barrow (D-Ga.), Lois Capps (D-Calif.) and Steve Israel (D-N.Y.) signed on to the brief, in addition to former Sen. Gary Hart (D-Colo.).

The Hill reached out to Trump for comment.

—Updated Oct. 29 at 5:24 p.m.