This noxious notion is at the core of a new lawsuit that Trump has filed to disrupt the House select committee examining Jan. 6. The suit has been mocked for its obvious desire to cover up Trump’s culpability. But underlying this effort is a bigger idea that will reverberate beyond this court battle.
It’s the idea that an effort to overthrow U.S. democracy through corrupt procedural subversion — and then through mob intimidation and violence — simply doesn’t merit a true national reckoning and a response. That there is simply no reason for Congress to act, in any way, to prevent this from happening again.
Trump’s lawsuit hinges largely on two ideas: First, that the select committee’s document requests have no “legitimate legislative purpose.” Second, that President Biden should honor Trump’s demand that he exert executive privilege to shield executive branch documents from congressional scrutiny.
These things, the lawsuit asserts, show Congress engaged in a “vexatious, illegal fishing expedition,” supported by Biden and targeting a former president and his advisers, which would “destroy” our “separation of powers.” The lawsuit asks the court to block the document demand.
The “executive privilege” claim has been widely challenged. Trump’s lawsuit objects to the committee’s demand for documents from the National Archives, which likely include communications among Trump and many top advisers about the Jan. 6 rally, Trump’s true intentions that day, and the effort to subvert the electoral count in Congress.
But as Biden’s White House counsel points out, the current president can determine that this demand for executive privilege would not be in the national interest, as it would subvert an accounting of Jan 6. And some legal experts agree that a former president probably can’t exert such privilege. Regardless, this matter has not been decided in a court, and now it will be.
So let’s focus on Trump’s claim that the committee’s requests lack any legislative purpose. That’s just crazy: Here in the real world, it’s easy to name numerous legitimate legislative purposes that might apply.
For instance, Democrats are eyeing a package of reforms that would strengthen oversight over presidential manipulation of law enforcement. They would require the attorney general to keep a record of communications between Justice Department officials and the executive branch, and report them to the department’s inspector general, who would notify Congress of anything amiss.
Guess what? In the run up to Jan. 6, Trump pressured the department to announce that the election’s outcome was dubious, apparently to create a pretext to pressure his Vice President to subvert the electoral count in Congress.
The Jan. 6 select committee will examine those Trumpian efforts to corrupt law enforcement. It’s obvious that the details of how Trump did this could inform reforms designed to improve transparency into any such future attempts.
Meanwhile, select committee members have indicated that they may ultimately recommend reforms of the electoral college system, such as revising the Electoral Count Act. This would make it harder for congressional objections to invalidate electors and clarify the vice president’s role as largely ceremonial.
That would close holes in the law that Trump tried to exploit. Because those very ambiguities invited the effort to subvert the outcome in Congress — which helped spark the violence, since Trump incited the mob to carry that out — the select committee has an obvious legislative purpose in examining precisely how Trump and his co-conspirators evolved this plot.
That’s not all. Kyle Cheney points to other obvious legislative interests that the committee will pursue, such as countering domestic terrorism and fortifying Capitol security.
All this is plainly within Congress’s legitimate powers. As legal scholar Josh Chafetz points out, the committee is “investigating an attempt by Trump’s supporters to overthrow the government by force,” and as such, it will “put forward proposals to make this sort of event less likely to occur, and less likely to succeed, in the future.”
So Trump’s claim is absurd. But lurking underneath it is an even more risible claim: That we shouldn’t bother acting legislatively at all to protect against another effort to subvert the election, either procedurally or violently.
This is where most of the GOP will end up. When Democrats undertake reforms of the Electoral Count Act or safeguards against presidential manipulation of law enforcement, these will immediately become associated with Enemies of Trump, since they smack of a response to bad things Trump did. Republicans won’t associate themselves with any of that.
At a time when Republicans are increasingly running on an open vow to subvert future election losses and touting their support for Trump’s 2020 lies as qualification to take control over critical election machinery, that should further stoke worries about 2024.
When you step back and think about it, the idea that Congress shouldn’t act at all to avert another Jan. 6 is so preposterous and radical that it’s hard to see how anyone can harbor it while functioning as an actor in a democracy. But one of our major political parties is well on its way to entirely adopting and internalizing it as dogma.