WASHINGTON ― Former President Donald Trump’s efforts to remain in power by effectively overthrowing the Constitution should remain a secret under that same document’s concept of “executive privilege,” his lawyers are telling a federal appellate court a week after the identical argument was rejected by a trial court judge.
Lawyers Jesse Binnall and Justin Clark warn that if the judges allow the House select committee investigating the Jan. 6 attack on the U.S. Capitol to have access to Trump’s documents, future presidents will suffer, too.
“It is naïve to assume that the fallout will be limited to President Trump or the events of January 6, 2021. Every Congress will point to some unprecedented thing about ‘this president’ to justify a request for his presidential records,” they wrote in a filing this week to the U.S. Court of Appeals for the District of Columbia Circuit. “In these hyper-partisan times, Congress will increasingly and inevitably use this new weapon to perpetually harass its political rival.”
The Biden White House, the House committee and U.S. District Judge Tanya Chutkan all have accepted as a basic premise that the Jan. 6 assault on the Capitol was an extraordinary event that calls for extraordinary measures.
“The documents shed light on events within the White House on and about Jan. 6 and bear on the select committee’s need to understand the facts underlying the most serious attack on the operations of the federal government since the Civil War,” White House counsel Dana Remus wrote in an Oct. 8 letter to the National Archives, approving release of the first batch of documents.
Chutkan, in her Nov. 9 decision denying Trump an injunction to block release of those papers, wrote: “The court holds 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.”
Trump and his lawyers, though, appear to deny that Jan. 6 was anything special and essentially argue that the then-president’s role in inciting what happened that day should be treated as normal White House deliberation and decision-making and, therefore, protected by “executive privilege” ― the notion that a president should be able to receive candid guidance from advisers without fear of public disclosure.
“Democrats in Congress created the United States House Select Committee to Investigate the January 6th Attack on the United States Capitol … to effectively intimidate and harass President Trump and his closest advisors under the guise of investigating the events of January 6, 2021,” Binnall and Clark wrote.
Trump, however, had already been impeached for inciting the attack in the final days of his term. And in recent months, more information has emerged that details how he and his advisers discussed using the military to seize voting machines and to force states to rerun elections before eventually settling on a plan to coerce Vice President Mike Pence into unilaterally rejecting the Electoral College count and declaring Trump the winner.
Michael Luttig, a retired federal appellate judge and a longtime favorite in conservative circles, said Trump’s efforts to keep deliberations about such activity a secret may well be rejected out of hand. “The Supreme Court likely would never uphold an assertion of executive privilege that would shield illegality,” he said.
Laurence Tribe, a constitutional law professor at Harvard, said deliberation about overturning an election would fall outside of the “structure and responsibilities of the presidency” parameters set by the U.S. Supreme Court when it decided against letting President Richard Nixon keep his tape-recorded conversations about the Watergate burglary and cover-up a secret.
Binnall and Clark filed their brief on Tuesday. The House and the National Archives, represented by the Department of Justice, are to file a response by Monday, with a reply brief from Trump’s lawyers due on Nov. 24. The three-judge appellate panel has scheduled oral arguments for Nov. 30.
The losing side is likely to file an appeal to the Supreme Court, although it is unclear whether the high court will accept it.
Trump in January became the first president in 232 years of U.S. elections to refuse to turn over power peacefully to his successor.
He spent weeks attacking the legitimacy of the Nov. 3, 2020, contest that he lost, starting his lies in the predawn hours of Nov. 4 that he had really won in a “landslide” and that his victory was being “stolen” from him. Those falsehoods continued through a long string of failed lawsuits challenging the results in a handful of states.
Trump and some of his advisers even discussed using the military by invoking the Insurrection Act or declaring martial law to retain power despite having lost the election, including by seizing voting machines and ordering “re-votes” in states narrowly won by Democrat Joe Biden.
But military leaders had earlier made it clear they would not involve themselves in the political process, so after the Electoral College finally voted on Dec. 14, making Biden’s win official, Trump instead turned to a last-ditch scheme centered on the Jan. 6 pro forma certification of the election results in Congress.
Trump asked his followers to come to Washington that day and then told the tens of thousands who showed up to march on the Capitol to intimidate Pence into doing what Trump wanted. “When you catch somebody in a fraud, you’re allowed to go by very different rules,” Trump said.
The mob of supporters he incited attempted to do his bidding by storming the building. They even chanted “Hang Mike Pence” after the vice president refused to comply with Trump’s demands.
A police officer died after being assaulted during the insurrection, and four others took their own lives in the days and weeks that followed. One of the rioters was fatally shot as she climbed through a broken window into an anteroom containing still-evacuating House members, and three others in the crowd died during the melee.
Though the House impeached Trump for inciting the attack, all but seven Senate Republicans, led by Senate Minority Leader Mitch McConnell, chose not to convict him ― thereby letting Trump continue his political career even as faces several investigations into his postelection actions.
Trump and his allies are now engaged in a campaign to portray the rioter who was shot, Ashli Babbitt, as a martyr and the hundreds of others who have been arrested as victims of political persecution. Trump himself continues to suggest he will run for the 2024 GOP nomination and is using his Save America committee’s money to continue spreading the same falsehoods that culminated in the violence of Jan. 6.