As president, Donald Trump stymied lawmakers seeking his financial records and the testimony of a close adviser by employing a legal strategy that worked to his advantage even when he lost in court.
“Donald Trump just has one play in his playbook. Delay. He tries it everywhere,” said Washington lawyer Neal Katyal, a former acting solicitor general. “It was easier for him when his folks controlled the Justice Department, but now that they don’t, it’s a much harder strategy.”
Trump filed a lawsuit last month seeking to prevent the House committee investigating the Jan. 6 attack from obtaining White House visitor logs, emails, draft speeches and other official government records related to certification of the 2020 election. The committee’s request, his lawyers argued, is tantamount to harassment, “nothing less than a vexatious, illegal fishing expedition.”
Observers note the unmistakable echoes of the former president’s battles while in office, when he fought to block lawmakers from accessing his tax returns and impede their attempts to interview the former White House counsel about Trump’s attempt to undercut Robert S. Mueller III’s Russia investigation. In effect, he ran out the clock in both instances, even though Congress eventually obtained some of what it wanted.
Trump’s history of business scandals and bankruptcies has allowed him to hone his approach. Gwenda Blair, a Trump biographer, recalled how he countersued the Justice Department for $100 million in the 1970s when the federal government went after his family’s housing complexes in New York in a racial discrimination case.
“He stalls things indefinitely” and aims to be perceived as the winner by “punching back immediately” and putting his opponents on the defensive, Blair said. “This is a legal system in which being able to afford a lawyer is very often the side that prevails.”
After nearly two years of fighting, Trump and his father made a deal with the government that required them to advertise housing opportunities for minorities and educate themselves about the Fair Housing Act. But Trump also declared victory because the agreement made no acknowledgment of wrongdoing.
In the tax case, which centers on lawmakers’ desire to examine Trump’s business practices, Trump managed to shield his records from Congress even when he lost in district court and at the court of appeals. He sued the House Oversight Committee — and his longtime accounting firm, Mazars USA — in April 2019, but the case did not reach the Supreme Court for more than a year, with a ruling in July 2020.
Although the high court rejected Trump’s bold claims of immunity from congressional investigation, Congress has yet to see his records. The justices remanded the case to lower courts, which narrowed the set of documents Congress can review, and it is now back on appeal with arguments set for next month.
In the Jan. 6 case, any delay could again work to Trump’s advantage if the legal wrangling is not resolved before next year’s midterm elections, when Republicans hope to take control of Congress. But there is reason to think the courts will move more quickly.
Unlike the tax case, when the White House and lawmakers were at odds, Congress and the sitting president now agree that the documents should be turned over to House investigators.
President Biden last month rejected Trump’s request to block their release. U.S. District Judge Tanya S. Chutkan has agreed, finding last week that “the public interest lies in permitting — not enjoining — the combined will of the legislative and executive branches to study the events that led to and occurred on January 6, and to consider legislation to prevent such events from ever occurring again.”
Chutkan’s opinion quoted a memorable phrase from the ruling against Trump two years ago, when another district court judge, Ketanji Brown Jackson, sided with Congress in the fight over testimony from Donald McGahn, Trump’s former White House counsel.
“Presidents,” Jackson declared, “are not kings.” She has since been elevated by Biden to the U.S. Court of Appeals for the D.C. Circuit.
The appeals court has put a temporary hold on Chutkan’s ruling, and a three-judge panel is scheduled to review Trump’s request after Thanksgiving. The panel includes Jackson and two judges nominated by President Barack Obama. It could rule before the new year.
If Trump loses at the D.C. Circuit, he will almost certainly ask the Supreme Court to step in.
It takes five of the nine justices to put a ruling on hold, but it is unclear whether the Supreme Court would be inclined to wade into the Jan. 6 controversy. The court might view the separation-of-powers concerns as less significant because Congress and the sitting president are on the same side. The justices also might want to steer clear of deciding such a high-profile political dispute on an emergency basis, at a time when the court has been criticized for how often it makes substantive decisions through the so-called shadow docket.
In Trump’s lawsuit, Donald J. Trump v. Bennie G. Thompson, his attorneys argue that a former president retains a right to assert executive privilege and that the office of the president will be irreparably harmed if the documents are released to the House committee. They say the case presents novel constitutional questions about the rights of a former president.
But in 1977, as lawmakers pursued reforms following the Watergate scandal, the Supreme Court rejected former president Richard M. Nixon’s attempt to stop the release of White House tapes and documents, finding that executive privilege “is not for the benefit of the president as an individual, but for the benefit of the Republic.” Congress went on to pass the Presidential Records Act, establishing that a president’s official records belong to the people, not the occupant of the office, and creating a process for handling disputes.
The National Archives has identified hundreds of documents from the Trump White House deemed relevant to the House committee’s Jan. 6 investigation. As required, the material was first reviewed by the Biden White House and Trump’s lawyers.
In her ruling last week, Chutkan said it is the sitting president — not the former president — who is “best positioned to evaluate the long-term interests of the executive branch and to balance the benefits of disclosure against any effect on the ability of future executive branch advisers to provide full and frank advice.”
Saikrishna Prakash, a University of Virginia law professor, said the position of the incumbent president will matter to the courts, but the legal questions at issue are significant and far from settled.
“If the rationale for the privilege is candid advice giving, then it would be reasonable for the privilege to extend beyond a president’s term,” he wrote in a Washington Post column. “After all, Trump’s aides may not have supplied unfiltered advice if they knew that all their advice could be aired the week after Trump left office. President Biden faces the same issue with the counsel his aides now supply him.”
Facing the possibility of another drawn-out legal battle, House Democrats are backing a legislative proposal that would require the courts to review cases involving congressional subpoenas on a compressed timeline.
By the time Congress finally heard from Trump’s former White House counsel in June, Trump had lost the 2020 election and lawmakers were starting to investigate the Capitol attack. Most of McGahn’s account, detailing how Trump tried to undo Mueller’s probe of the 2016 election, was already public and anticlimactic.
House Judiciary Committee Chairman Jerrold Nadler (D-N.Y.), whose panel issued the subpoena and fought in court for two years to enforce it, said the litigious Trump era had taught lawmakers a lesson. “Congress,” he said, “can no longer depend on good-faith cooperation” from the executive branch.
The Jan. 6 insurrection
Congressional hearings: The House committee investigating the attack on the U.S. Capitol held a series of high-profile hearings to share its findings with the U.S. public. What was likely to be the panel’s final public hearing has been postponed because of Hurricane Ian. Here’s a guide to the biggest hearing moments so far.
Will there be charges? The committee could make criminal referrals of former president Donald Trump over his role in the attack, Rep. Liz Cheney (R-Wyo.) said in an interview.
The riot: On Jan. 6, 2021, a pro-Trump mob stormed the U.S. Capitol in an attempt to stop the certification of the 2020 election results. Five people died on that day or in the immediate aftermath, and 140 police officers were assaulted.
Inside the siege: During the rampage, rioters came perilously close to penetrating the inner sanctums of the building while lawmakers were still there, including former vice president Mike Pence. The Washington Post examined text messages, photos and videos to create a video timeline of what happened on Jan. 6.