Ex-President Donald Trump is planting his flag on a logical absurdity in his transparent bid to run out the clock on the January 6 investigation and avoid accountability for his unprecedented bid to steal power in a coup.
A President who refused to accept the result of a free and fair election and who incited a mob that invaded the US Capitol is arguing that he is acting to protect the republic, the presidency and constitutional norms. That argument is hard to read with a straight face.
His goal is to delay the House select committee’s investigation and keep his West Wing documents secret as long as possible, at least until after the midterm elections when a Republican House majority could shut down the probe. And on that front, he got a short-term victory on Thursday when a panel of appeals court judges granted him a last-minute reprieve to stop the committee from obtaining his White House documents as scheduled on Friday. The move was to allow time for Trump’s appeal to a scathing ruling from a lower court judge earlier this week that comprehensively rejected his claim to shield memos, diary entries, and call and visitor logs with executive privilege. But in their Thursday memo, the three judges – all appointed by Democrats – wrote that it “should not be construed in any way as a ruling on the merits.”
Trump’s argument that he is trying to defend the presidency may possess a certain legal coherence within the confines of a case he is making that his discussions around January 6 should remain confidential through a doctrine known as executive privilege, which protects presidential deliberations. But in the real world, the claim that he’s acting to protect future occupants of the Oval Office is undermined by his wrecking ball presidency that stretched the Constitution to its limits. It’s the kind of leap of credulity and subversion of truth that defined Trump’s presidency and is consistent with a lifetime approach of using the law to avoid answering the consequences of his own actions rather than pursuing justice.
And as so often before, Trump ends up accusing those who try to hold him to account of being guilty of the exact transgression of which he is accused – in this case eviscerating presidential norms. Trump’s argument would also require outsiders to draw the conclusion that a man who spent four years ignoring the Constitution, defying scrutiny by Congress and stretching the powers of his office suddenly cares for American democracy.
Even when out of office, his tactics and behavior are being replicated by some of his most loyal former aides. An attorney for former White House chief of staff Mark Meadows, for example, said on Thursday his client would not cooperate with the January 6 committee until the courts rule on Trump’s executive privilege claim. The former North Carolina congressman is claiming his dealings with Trump are shielded by executive privilege. But select committee Chairman Bennie Thompson demanded Meadows show up before the committee on Friday or else risk a criminal contempt referral – a move the panel already took against Trump political adviser Steve Bannon.
Supreme Court precedent suggests that while ex-presidents may have some expectation of executive privilege in some circumstances, the ultimate decision on the matter rests with the sitting president and not the former one. President Joe Biden has already decided not to support Trump’s claims given the extraordinary nature of what took place on January 6, and Meadows was notified Thursday that Biden will not assert executive privilege or immunity over documents and testimony requested by the panel.
In their filing to the US Court of Appeals for the DC Circuit for the injunction, Trump’s legal team said that the case raised “weighty and rarely litigated constitutional issues that could have a profound effect on the executive branch.” They added that “an injunction, so that the court can judiciously consider this dispute, is in the public’s and this Republic’s best interest.”
It’s true that the question of where executive privilege resides carries implications for the future. But again, the argument that Trump is purely acting altruistically to clear up a constitutional point of dispute is hard to take seriously. It has long been clear that Trump and acolytes like Bannon want to delay the committee’s work until the midterms. Such a scenario would mean that while many of Trump’s supporters who smashed their way into the Capitol are now beginning to face justice, the ultimate orchestrator of the chaos, Trump, would escape a formal accounting for the worst attack on American democracy of the modern era – all while he cranks up what looks like a certain 2024 presidential campaign.
Meadows team slams White House
The arguments from Meadows, who has so far refused to comply with a subpoena from the committee, echo those from the Trump lawyers. The former White House chief of staff is making clear he will not cooperate until told by a court that he must do so. In essence, Meadows is arguing that Biden, by not protecting Trump documents and aides, is the president who is crushing norms rather than his former boss, who tried multiple times to steal the election.
Meadows’ lawyer, George Terwilliger, told CNN in a statement that “contrary to decades of consistent bipartisan opinions from the Justice Department that senior aides cannot be compelled by Congress to give testimony, this is the first President to make no effort whatsoever to protect presidential communications from being the subject of compelled testimony.”
But a White House official pushed back on the Meadows gambit on Thursday, saying it was factually and legally wrong. “Mark Meadows hardly has claim to complain about norms and traditions – Meadows participated in an effort to subvert the Constitution and overturn a presidential election, including by pressuring state elections officials to alter election results and by personally attempting to coerce the Department of Justice into investigating absurd conspiracy theories,” the official said.
In a preview of the Meadows line of argument, Trump spokesman Taylor Budowich said earlier this week that the ex-President would continue to fight for the integrity of the presidency in perpetuity.
“The battle to defend Executive Privilege for Presidents past, present & future—from its outset—was destined to be decided by the Appellate Courts,” Budowich wrote. “Pres. Trump remains committed to defending the Constitution & the Office of the Presidency, & will be seeing this process through.”
The appeals court has set oral arguments in the Trump case for November 30, meaning that a handover of documents from the National Archives to the committee likely will not take place until early December – if Trump loses, as many legal experts believe that he will. Even then, the ex-President is almost certain to appeal the case right up to the Supreme Court.
Garland may soon get new contempt citation to consider
The new delay for the committee comes as it waits for Attorney General Merrick Garland and the DC US attorneys office to decide whether to prosecute Bannon on the basis of the criminal contempt of Congress charge. But Rep. Adam Kinzinger, one of just two Republicans on the select committee, said Thursday that he was not concerned that the new delay would seriously imperil the work of the investigation.
“I don’t think it’s a huge setback. Obviously Trump’s folks will spin this as a win because there’s a lack of wins, frankly on any of their legal side,” Kinzinger told CNN’s Wolf Blitzer.
“Of course, we wish we’d have gotten these documents tomorrow, but this doesn’t come as any surprise, it’s not going to slow down our investigation and I expect that, keeping the Supreme Court potentially aside, we will have these documents fairly soon.”
In a fresh sign of the committee’s growing impatience with Meadows, however, after protracted conversations with the former chief of staff’s representatives, Thompson issued a strongly worded statement demanding his attendance on Friday.
“Simply put, there is no valid legal basis for Mr. Meadows’s continued resistance to the Select Committee’s subpoena. As such, the Select Committee expects Mr. Meadows to produce documents and appear for deposition testimony tomorrow, November 12, 2021, at 10:00 a.m,” the Mississippi Democrat said.
“If there are specific questions during that deposition that you believe raise legitimate privilege issues, Mr. Meadows should state them at that time on the record for the Select Committee’s consideration and possible judicial review,” Thompson wrote. The chairman warned that “willful noncompliance with the subpoena would force the Select Committee to consider invoking the contempt of Congress… which could result in a referral from the House of Representatives to the Department of Justice for criminal charges.”
Meadows, however, has already indicated that he has no intention of helping the committee until he thinks his legal options have run out, a position consistent with everything America already knows about the behavior of the previous administration.