The House committee seeking executive branch documents in its investigation of the Jan. 6 attack is likely to force a standoff between Congress and former President Trump over the issue of executive privilege.
The panel on Wednesday sent demands to eight government agencies seeking exhaustive records and communications to determine, among other things, “how the January 6th events fit in the continuum of efforts to subvert the rule of law, overturn the results of the November 3, 2020 election, or otherwise impede the peaceful transfer of power.”
The request from the committee includes an exhaustive list of Trump associates, including family members and close aides.
The letter asks for documents and communications from within the White House “relating in any way” to former first lady Melania Trump; three of the former president’s children, Ivanka Trump, Eric Trump and Donald Trump Jr.; Jared Kushner, Ivanka Trump’s husband; and any member of Congress or Hill staffer. It also asks for the National Archives to turn over communications with all of Donald Trump’s top aides.
The committee and watchdog groups say the records are essential to accountability efforts.
“The committee has a right to these documents,” said Tim Stretton, the director of the Congressional Oversight Initiative at the nonpartisan Project on Government Oversight. “This was an attack on Congress and the legislative branch of government. And the committee has a responsibility to find out what exactly happened on that day and what led up to that horrendous attack, and they should have access to all records that help answer those questions.”
Trump quickly attacked the committee’s requests as a “partisan sham” and vowed to fight them with claims of executive privilege.
“Unfortunately, this partisan exercise is being performed at the expense of long-standing legal principles of privilege,” the former president said in a statement.
“Executive privilege will be defended, not just on behalf of my Administration and the Patriots who worked beside me, but on behalf of the Office of the President of the United States and the future of our Nation. These Democrats only have one tired trick—political theater—and their latest request only reinforces that pathetic reality.”
The threat heightens the possibility for another standoff between Trump and congressional investigators.
It’s a familiar battle for Trump, who while in office fought numerous legal battles to block congressional probes into his ties to Russia, his personal finances and his administration’s actions.
But even the Biden administration may have qualms about fully complying with the broad request. In a typical oversight inquiry, the legislative and executive branches would negotiate the full scope of the demands in order to reach an accommodation.
Barbara McQuade, who served as a U.S. attorney in the Obama administration and who recently penned a list of questions the Jan. 6 committee should ask of numerous Trump officials, said the Biden team may be able to make a case the request is overly broad.
“If I were representing [the administration] I would probably go back and say, ‘We want to give you everything you’re entitled to. We think that your requests are overly broad. How about if we work on narrowing this request to some extent? Don’t make us go to court to do that,’” she said.
“I agree with the strategy of the House,” McQuade added. “Let the recipient tell you that it’s too much and suggest how to narrow it before you negotiate against yourself.”
But if Trump tries to block the document requests in court, it would likely complicate and prolong the panel’s inquiry. His vow to defend executive privilege on “behalf of the Office of the President of the United States and the future of our Nation” could lead to another legal scenario where the Biden administration will have to balance the interests of the executive branch with the Democrats’ quest for accountability around the deadly events of Jan. 6.
Laurent Sacharoff, a law professor at the University of Arkansas who has studied how executive privilege applies to former presidents, said that sitting presidents have an interest in maintaining a judicial deference toward executive privilege claims.
“The current president always has a duty to protect the privileged communications of previous presidents so that he, the current president, can get candid advice,” Sacharoff said. “If presidents always undermine confidential communications of the previous people for political reasons, then the privilege will cease to be trustworthy and people won’t give candid advice. That’s kind of the standard analysis of privilege.”
In several cases that it inherited from Trump, the Biden administration has sided with its predecessor on matters of executive privilege and other legal advantages afforded to the executive branch.
That includes a move in May to appeal a judge’s decision ordering the release of a 2019 legal memo prepared for then-Attorney General William Barr after the investigation led by former special counsel Robert Mueller.
But the Biden administration has also shown a willingness to cooperate with the House panel and not exert executive privilege in some circumstances. Last month, the Justice Department said it would not try to block the committee from interviewing former officials as part of the inquiry.
And with the high stakes of an investigation into an attack on the legislative branch, some experts believe the interest in lawmakers obtaining some or all of the records could override Trump’s executive privilege claims if the matter ends up before a judge.
“There was an attack on Congress, there was an attack on the U.S. Capitol, and Congress being that entity, they need to find out what went wrong that day,” Stretton said.
“How were their lives put in danger? And what led to that? What caused that? Because we don’t want to be in a situation where this happens again, and if they don’t know what happened they can’t prevent this from happening again,” Stretton added. “So this is actually very different than other congressional investigations, which is why I don’t expect any complaints over executive privilege to hold.”
Sacharoff added that even if Trump is able to exert executive privilege, there will be limits to shielding records from Congress.
“It’s not an absolute privilege, like attorney-client privilege. It can yield to more important interests” like impeachment, Sacharoff said.
An investigation into the Capitol riot, he went on to say, could have enough weight to override executive privilege where a typical congressional oversight inquiry would not.
“And so it strikes me from a commonsense point of view that Congress should have a fair amount of power here to get to the bottom of this,” Sacharoff said. “Especially in the context of an attack on the day of certifying the election and so central to democracy, it seems to me that a court would take into account the important need of Congress to investigate something that so closely affects it.”
The committee’s push for records could also spark pushback from members of Congress who, along with their staff, have had their communications with the White House swept up in the request.
“I think that is somewhat unusual because of the traditional courtesies that have been shown to members of their own body, and I think those courtesies can sometimes be detrimental to getting to the work of the people,” McQuade said.
“So I think this committee is correctly recognizing that it represents the people and if it means embarrassing or stepping on the toes of one of their colleagues, that it’s their duty.”
–Updated on August 30 at 10:47 a.m.