Executive privilege fight poses hurdles for Trump

Former President Trump faces significant hurdles in his effort to use executive privilege to block the Jan. 6 committee’s subpoenas for executive branch documents and testimony from his former aides. 

After the panel issued a new round of subpoenas Thursday night seeking testimony from his former advisers, Trump renewed his threat to fight the investigative demands using claims of executive privilege.

“We will fight the Subpoenas on Executive Privilege and other grounds, for the good of our Country, while we wait to find out whether or not Subpoenas will be sent out to Antifa and BLM for the death and destruction they have caused in tearing apart our Democrat-run cities throughout America,” the former president said in a statement.

The standoff has laid the groundwork for what could become a major legal battle with significant constitutional implications. It’s unclear how he would fare in court, but Trump’s ability to use executive privilege to shield information and hinder the committee’s investigation is likely limited.

Trump may try to convince the four former advisers — chief of staff Mark Meadows; strategist Steve Bannon; social media guru Dan Scavino; and Kashyap Patel, the former chief of staff to the acting secretary of defense in the final weeks of the Trump administration — not to comply with the subpoenas for their testimony or to invoke executive privilege over certain information.

The committee could then file a civil suit seeking a court order directing the former aides to comply. The lawmakers could also choose to hold them in contempt, referring the matter to the Justice Department for a criminal prosecution. 

Last month, the committee also sent requests to the National Archive for voluminous categories of documents from eight government agencies related to the Trump administration’s handling of the Capitol riot. Under the Presidential Records Act, Trump’s lawyers will be able to push for some of the responsive documents to be shielded using executive privilege, but ultimately it will be up to the current White House whether to approve it. 

The Washington Post reported this week that President Biden’s White House is inclined to turn over to Congress documents that would normally be considered privileged. If it does so, Trump could try to go to court for an order blocking the release. 

Rep. Bennie Thompson (D-Miss.), who chairs the select committee, vowed to use any legal means at his disposal to enforce the subpoenas, noting he hopes to rely on the backing of a friendly administration. 

“Nobody is beyond a subpoena,” Thompson said when asked whether future subpoenas would target others in Trump’s orbit, including his children.

“Most of what we’re looking for it’s a matter of President Biden saying it’s okay to get the information, and they have not to my knowledge made a final decision on that.”

If the standoff does end up in court, it would pit the executive branch’s interest in confidentiality against the committee’s investigatory needs. The Supreme Court has ruled that a former president has some standing to assert executive privilege, but the scope of it is largely unsettled.

Such a court fight would also put the Biden administration in a position where it would have to balance the investigative efforts with its own interests in executive branch privilege.

“While the Biden Administration is certainly keen to encourage as much transparency and disclosure here, and they have already permitted more than was expected, there are legitimate executive privilege concerns that could be implicated and that might be defended by the incumbent administration,” said Bradley Moss, a lawyer specializing in national security law. 

“It will be a case-by-case assessment, and no one should assume Biden will simply allow the Government to throw open everything to Congressional investigators. There is an institution and precedent with respect to the Office of the President that Biden will still want to protect, within reason.”

Moss added that Trump would face different hurdles in a court challenge against the document requests versus a case over the subpoenas to his inner circle.

“Mr. Trump’s ability to invoke executive privilege with respect to testimony, as opposed to records, is even weaker, as the PRA does not truly encompass the issue,” he said. “That would be strictly an issue for DOJ to evaluate, but which Mr. Trump could, if he was truly feeling bold, try to litigate in court. He would ultimately lose.”

Other legal experts say that there are a lot of open questions about the extent to which former presidents can invoke privilege, and that those questions would likely prevent any quick resolution in the courts. 

“I think we’re going to see potentially — it may get to the court, it may not — this difficult constitutional question about what powers, what authority, a former president has when it’s his information and his papers at issue. It’s never really come up much and it will have ramifications for long down the road,” said Jonathan David Shaub, a constitutional law professor at the University of Kentucky.

Emily Berman, a professor at the University of Houston’s law school, said there is a lot of uncertainty around how such a case might play out and that the outcome would be influenced by a long list of factors. 

“The extent to which former presidents can claim privilege is something that hasn’t been worked out through the courts,” Berman said. “There aren’t clear rules and there are lots of variables that might differentiate some people’s conversations [with Trump] from others, and some documents versus some other documents.” 

“For example a former president’s privilege claim is deemed much stronger if the current president supports it,” she added. “We’ve never been in a situation where there was a prior claim that was not supported by the incumbent, because presidents, when it comes to their turn to be the former president, they want to be able to do that same thing.”

Berman added that Trump’s goal may be to tie up some of the subpoenas in court in the hope of stalling the investigation.  

“We saw this with other attempts to get information from President Trump, you go to the court and it takes a year and a half to come to a conclusion,” she said. “You know that Republicans might be in control of the House at that point and so I think even if you have quite weak legal arguments the tactic of, ‘let’s get this tied up in the courts and simply delay’ – that’s one that’s worked for the former president in the past and I don’t see any reason why he wouldn’t try to do the same here.”

But ultimately, Shaub said, Trump may not be able to block the committee from getting a clear enough picture to carry out the probe.

“I think there’ll be people, like we saw with the impeachment inquiry, who come forward and testify. Even if Trump is out there shouting that they can’t and they shouldn’t and try behind the scenes to pressure them not to,” Shaub said. 

“So I think they’ll get information, and there may be some information, some of the precise conversations and whereabouts on the 6th and some of the things they saw from these witnesses, maybe they never get that,” he said. “But it seems like they would be able to piece together a pretty good picture of what happened without having all those details.”

Scott Wong contributed.