It seems the courts have had it with the attempts by former president Donald Trump and his cronies to evade their legal obligations to respond to lawful subpoenas. Coupled with the apparent determination of the House select committee investigating the Jan. 6 attack, we might have reached a turning point on the inquiry into the violent insurrection Trump instigated.
The three-judge panel in the U.S. Court of Appeals for the D.C. Circuit was skeptical, verging on dismissive, of the notion advanced by Trump’s counsel that he, not the sitting president, should be able to decide whether to waive executive privilege regarding documents from the Trump administration, which are now under the control of the National Archives.
In more than 3½ hours of argument, there was little indication that the court seriously entertained the idea that the former president can veto the current president’s decisions on executive privilege. “This all boils down to who decides,” Judge Ketanji Brown Jackson said. “Who decides when it’s in the best interest of the United States to disclose presidential records? Is it the current occupant of the White House or the former?”
Above the Law’s Liz Dye reported:
Over and over Judge [Robert] Wilkins returned to the point that the Supreme Court couldn’t possibly have intended to confer some measure of executive authority on the former president in Nixon v. GSA, but simultaneously render it a nullity by decreeing that it could never outweigh that of the incumbent. And Judge [Patricia] Millett seemed to think that the former president’s authority progressively wanes after January 20, and thus there must be some balancing test for assertions of privilege coming just six months after being booted out of office.
In fact, former federal prosecutor Barbara McQuade tells me, “the judges seemed skeptical as to whether a court [should] get involved in this dispute at all, or should instead defer to the decision of the current president as head of the executive branch as a matter of separation of powers.”
Trump’s lawyers, plainly looking to slow down the litigation, wanted the court to assess the privilege claim document by document. “The judges clearly saw through Trump’s strategy,” former House impeachment counsel Norman Eisen tells me, adding that the “courts seem to be on to him.” We should expect a prompt decision.
If the decision does not go his way, Trump is almost certain to appeal to the Supreme Court. But there is no guarantee the court will grant review. Its recent decision in Trump v. Mazars rejected Trump’s claim of absolute immunity while he was in office; the chance it will recognize his power to subvert the current president’s waiver of executive privilege and Congress’s legitimate interest in investigating the Jan. 6 insurrection is slim, even for this court.
Meanwhile, the efforts of Trump flunkies Stephen K. Bannon, Jeffrey Clark and Mark Meadows to avoid cooperating with the Jan. 6 committee, based on the former president’s invocation of privilege, are going poorly. Bannon faces contempt charges for having failed to show up in response to the committee’s subpoena. He may soon have company.
The committee will meet on Wednesday to vote on whether to hold Clark in contempt for refusing to testify about his role as the Justice Department official who plotted to bounce the acting attorney general and generated letters seeking to encourage states to call special legislative sessions with an eye toward overturning the 2020 election results. (He previously showed up but refused to answer questions.)
Meadows, the former White House chief of staff, apparently saw the handwriting on the wall and seems to be cooperating with the committee. Chairman Bennie G. Thompson (D-Miss.) put out a written statement on Tuesday confirming that “Mr. Meadows has been engaging with the Select Committee through his attorney. He has produced records to the committee and will soon appear for an initial deposition.”
Appearing is not testifying, as we saw with Clark, so the chairman reiterated the essential rule of thumb for gathering evidence: “The Select Committee expects all witnesses, including Mr. Meadows, to provide all information requested and that the Select Committee is lawfully entitled to receive. The committee will continue to assess his degree of compliance with our subpoena after the deposition.”
So where does that leave us? The Jan. 6 committee is not playing around. It is sending subpoenas to key witnesses and demanding cooperation under threat of criminal contempt. Not everyone has Bannon’s resources to litigate a nonsensical privilege claim, so more witnesses are likely to follow Meadows’s lead. The committee is zeroing in on the people in direct contact with Trump — those with firsthand knowledge of events leading up to Jan. 6 and of his conduct on that day. (Whatever documents exist might bolster witness testimony — or discredit those attempting to cover for Trump.)
Finally, the committee on Tuesday interviewed Georgia Secretary of State Brad Raffensperger for four hours about Trump’s pressure tactics to compel him to “find” just enough votes to swing Georgia’s electoral votes to him. “We talked about that and everything else leading into the election,” Raffensperger told the Atlanta Journal- Constitution. He added, “We want to make sure people have confidence in the election systems. If you lose, lose with dignity.” Quite a concept.
This is how one builds a case — witness by witness, forcing cooperation and document production. Behind the scenes, dozens of witnesses are reportedly cooperating. With courts evidencing no interest in Trump’s phony privilege claim, we might be reaching the point when we learn who did what in the plot to overthrow the election. That is bad news for the former insurrectionist in chief.