Trump Forcing Courts To Decide If Executive Privilege Has A ‘Coup-Plotting’ Exception

The Biden White House offers a rationale that says attempts to "subvert" the Constitution shouldn't be protected by a constitutional "executive privilege" idea.

WASHINGTON ― Does a president who tries to overthrow the republic to remain in power get to keep those planning conversations secret for decades to come? Or is there a coup-plotting exception to “executive privilege”?

That is the question former President Donald Trump could force federal courts to confront after his successor, President Joe Biden, on Friday approved the release of all the documents that the House committee investigating the Jan. 6 assault on the U.S. Capitol had asked for in its initial request.

“President Biden has determined that an assertion of executive privilege is not in the best interests of the United States, and therefore is not justified as to any of the documents,” wrote White House counsel Dana Remus in a letter to the National Archives.

The letter goes on to offer a framework that would, if applied to future document requests, release virtually everything related to Jan. 6 that was generated during the Trump administration.

“The constitutional protections of executive privilege should not be used to shield, from Congress or the public, information that reflects a clear and apparent effort to subvert the Constitution itself,” Remus wrote.

In a Friday letter of his own, Trump nevertheless claimed executive privilege over 47 numbered documents in the first batch as well as anything else the committee might ask for in the future. “I hereby make a protective assertion of constitutionally based privilege with respect to all additional records following the first tranche,” he wrote.

In an accompanying statement, Trump referenced the investigation of the assistance he received from Russia in his 2016 election, both his impeachments, which he called “hoaxes,” and his often-repeated lies about having won the 2020 election: “We won two elections, did far better in the second than the first, and now perhaps have to do it a third time!”

Norm Eisen, who served as an ethics lawyer in the Barack Obama White House and more recently worked for the House committee overseeing Trump’s first impeachment, said Biden’s approach will keep very little about Jan. 6 under wraps. “The administration has waived the privilege first as to the testimony, now as to this batch of documents, but both based on reasoning that will sweep broadly ― and rightly so,” he said.

Trump, who tried to overthrow American democracy after losing his reelection bid in November, has been trying to quash both the document requests by the select committee as well as subpoenas it has issued to his former aides and allies.

Friday saw the first public flashpoint on both efforts, as the committee released a statement saying that Mark Meadows, Trump’s former chief of staff, and Kash Patel, Trump’s handpicked chief of staff to his acting defense secretary in the final weeks, were “so far, engaging with the select committee.”

The statement said that Trump’s onetime chief strategist, Steve Bannon, was not complying with the subpoena demands. It did not mention at all Dan Scavino, Trump’s social media adviser, who reportedly has so far managed to avoid accepting service of the subpoena.

“We will enforce subpoenas,” Rep. Liz Cheney (R-Wyo.), the committee vice chair, wrote on Twitter.

Committee members, including chairman Bennie Thompson, a Mississippi Democrat, have previously stated that those defying subpoenas will be referred to the Justice Department for criminal charges of obstructing Congress.

Bannon attorney Robert Costello, in a letter to the committee Thursday, said Bannon would not comply with his subpoena because Trump was asserting executive privilege and had asked Bannon not to comply.

Costello said Friday that what happens will depend on the success of Trump’s legal challenge. “It’s a decision made by the court, not by us.”

Meadows, Patel and Scavino did not respond to HuffPost queries.

The White House had previously stated that, though each request for documents would be treated on a case-by-case basis, Biden’s view was that Jan. 6 and the weeks leading up to it were an unprecedented attack on American democracy and that his inclination would be to release Trump’s documents related to that to the committee.

Friday’s letter to the National Archives restated that view.

“These are unique and extraordinary circumstances,” Remus’ letter said. “An unprecedented effort to obstruct the peaceful transfer of power, threatening not only the safety of Congress and others present at the Capitol, but also the principles of democracy enshrined in our history and our Constitution. The documents shed light on events within the White House on or 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.”

Violent insurrectionists loyal to President Donald Trump climb the west wall of the the U.S. Capitol on Jan. 6. While lawmakers inside voted to affirm President Joe Biden's win, the right-wing mob marched to the building and broke inside.
Violent insurrectionists loyal to President Donald Trump climb the west wall of the the U.S. Capitol on Jan. 6. While lawmakers inside voted to affirm President Joe Biden's win, the right-wing mob marched to the building and broke inside.
Jose Luis Magana/Associated Press

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 despite having lost the election, 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 to canceling the ballots of millions of voters in several states Biden had 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.

The mob of supporters he incited attempted to do just that by storming the building. They even chanted “Hang Mike Pence” after Pence 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 tried to climb 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 Kentucky’s Mitch McConnell, chose not to convict him, thereby letting Trump continue his political career even as faces several investigations into his post-election 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 continues to suggest he will run for the 2024 GOP nomination for president and is using his Save America committee’s money to continue spreading the falsehoods that culminated in the violence of Jan. 6.