WASHINGTON ― As Donald Trump tries to keep his involvement in the Jan. 6 insurrection a secret, he may be about to learn that an ex-president gets far less deference in court than does a sitting one.
Trump, who tried to overthrow American democracy to remain in power despite losing the 2020 election, faces a federal court hearing Thursday on his request to block the National Archives from handing over hundreds of pages of documents from him and his White House staff regarding his actions leading up to and on the day of the assault on the U.S. Capitol.
And after four years of being able to argue that his executive branch was entitled to the benefit of any doubt when it came to carrying out the law, Trump suddenly finds himself on the opposite side of that balancing act.
“Much less deference,” Harvard constitutional law professor Laurence Tribe said, describing what Trump can expect from judges now compared with when he was in office.
Norm Eisen, who worked with the U.S. House on Trump’s first impeachment and was among a group of lawyers who filed an amicus brief in Trump’s lawsuit, said the issuance of an injunction is based on the likelihood of winning the case. “And because he is no longer president, he has dramatically less likelihood of success on the merits,” he said.
The House select committee investigating the Capitol riot has requested thousands of pages of documents from Trump’s White House now under the custody of the National Archives. Under the Presidential Records Act ― enacted in 1978 after Richard Nixon tried to ensure that White House tapes he had made would be destroyed after he resigned from office ― a former president has the right to ask the sitting president to block release of records on the grounds of executive privilege and, failing that, file a lawsuit.
Thursday’s hearing before U.S. District Judge Tanya Chutkan is to determine whether Trump will be able to block the scheduled Nov. 12 release of the first batch of documents to the committee, following President Joe Biden’s decision not to assert privilege on Trump’s behalf.
But rather than turn to a constitutional legal scholar with expertise in executive-legislative branch disputes, Trump instead hired a lawyer whose Twitter biography reads: “MAGA lawyer fighting for the Constitution and free elections; RINOs beware.”
“President Biden’s sober determination that the public interest requires disclosure is manifestly reasonable, and his to make.”
- Acting Assistant Attorney General Brian Boynton
Jesse Binnall, who represented Trump’s first national security adviser, Michael Flynn, as he tried to withdraw his plea of guilty to lying to the FBI, previously handled Trump’s lawsuit claiming election fraud in Nevada. That suit failed, and Flynn was pardoned by Trump before he left office.
At the Conservative Political Action Conference in Orlando, Florida, this February, Binnall claimed that judges across a number of states had conspired with the news media to suppress information about election fraud and had wrongly dismissed Trump’s challenges.
Binnall’s initial complaint in places reads like a Trump tweet. The select committee “has decided to harass President Trump and senior members of his administration (among others) by sending an illegal, unfounded, and overbroad records request to the Archivist of the United States,” Binnall wrote. “In a political ploy to accommodate his partisan allies, President Biden has refused to assert executive privilege over numerous clearly privileged documents.”
“Trump probably dictated it to him,” one Trump adviser said on condition of anonymity. The adviser said Trump likely hired Binnall because few high-profile lawyers want anything to do with Trump anymore and because those with lots of relevant experience are not cheap. “He’s at the bottom of the barrel for lawyers,” the adviser said of Trump.
Binnall did not respond to HuffPost queries.
The lawyer who wrote the Department of Justice’s response took note of Binnall’s outrage while pointing out that it was entirely beside the point.
“Indeed, many of his arguments do not properly relate to the presidential communications privilege at all, but rather attack the legitimacy of the congressional investigation into the January 6 attack. Thus, he spends the bulk of his motion arguing that the Select Committee is a ‘political ploy,’ wholly engaged in a ‘vexatious fishing expedition’ and serving no legitimate legislative purpose,” wrote Acting Assistant Attorney General Brian Boynton. “President Biden’s sober determination that the public interest requires disclosure is manifestly reasonable, and his to make.”
If Judge Chutkan rules against Trump in the U.S. District Court for the District of Columbia, he can ask her to stay that decision pending an appeal to the U.S. Court of Appeals for the D.C. Circuit or ask judges there, and ultimately the justices of the U.S. Supreme Court, to overrule her. But even those requests, experts said, will no longer carry the weight of a sitting president.
“In no event is a stay automatic,” Tribe said.
Trump has already started to see the limits of his reduced power. Earlier this year, he filed suit against Twitter and YouTube for taking away his account after he incited the insurrection, and did so in federal court in Florida, even though the terms of the social media platforms require that suits be filed in California, because his status as former president in his view allowed him to file suit anywhere he wanted.
So far Florida judges have ordered both cases to be transferred to California, while one against Facebook remains in Florida.
Trump 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 contest 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 U.S. military by invoking the Insurrection Act or declaring martial law to retain power, including by seizing voting machines and ordering “re-votes” in states narrowly won by 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 to pressure his own vice president into canceling the ballots of millions of voters in several states Biden won and declaring Trump the winner during the pro forma congressional certification of the election results on Jan. 6.
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 Mike 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 other law enforcement officers 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 then-Senate Majority Leader Mitch McConnell of Kentucky, 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 presidential nomination and is using his Save America committee’s money to continue spreading the same falsehoods that culminated in the violence of Jan. 6.