The only right response to Trump's executive privilege lawsuit

·4 min read
President Biden.
President Biden. Illustrated | Getty Images, iStock

Former President Donald Trump is trying to stymie the congressional investigation into his Jan. 6 putsch. Congress has subpoenaed Trump's associate Steve Bannon, as well as documents from the National Archives relating to the day's events. On Trump's orders, Bannon has refused to testify. Meanwhile, Trump has filed a lawsuit against both the House Jan. 6 committee and the archives. Trump is entitled, he claims, to the privacy of executive privilege.

He's not. President Biden should recognize this as an attempt to abuse the legal system to undermine democracy and respond accordingly. He has already rejected the executive privilege claim, but Biden should go further by rejecting the lawsuit and publishing any Trump administration documents related to the putsch immediately. Morevoer, those who defy subpoenas should be arrested and hauled before Congress.

If that seems extreme, it's important to be clear about what's happening here. An example of what not to do can be found at Lawfare, where law professor Jonathan Shaub has a long article looking into the executive privilege question. The Lawfare house perspective is deeply institutionalist and chauvinist, reflecting a wholly unmerited belief in the high quality of American institutions. Shaub's reasoning therefore assumes there is a "correct" answer here that can be divined by reading the entrails of a bunch of vague, poorly-written laws and vague, poorly-written Supreme Court decisions.

In reality, this is about political will-to-power, and neither law nor precedent matter in the slightest. The fact of this lawsuit being filed at all is evidence of utter corruption and malign intent. We all watched in real time — on live television across the world — as Trump whipped up a violent mob which sacked the Capitol in an attempt to disrupt Biden's certification as president. Having done that, Trump is now arguing it would be unconstitutional for Congress to investigate his seditious, violent attack on Congress itself — the heart of American democracy.

A greater offense to the idea of law and constitutional government can scarcely be imagined. Trump's lawyers are stringing some random words together in hopes either of dragging out this process until Republicans can retake Congress (in which case the committee will be disbanded) — or of getting the lawsuit before one of the right-wing fanatics Trump appointed to the judiciary. Their lawsuit would be equally valid if it read: "Mr. Trump is above the law because [donkey braying sound]."

That approach to litigation is predictable, because Trump has been doing this kind of thing his entire adult life. Long ago, he learned that if you are a rich person with time, determination, and no shame, the American legal system will generally give you whatever you want. You just file lawsuit after lawsuit, appeal after appeal, and eventually you win, or your opponent gets exhausted and settles.

This is why Trump never got seriously punished for repeatedly stiffing his contractors and lenders, or violating gambling laws, or committing apparent tax fraud. Even Shaub's conclusion — that Trump probably can't legitimately assert executive privilege but will still be able to keep the committee from getting the documents until 2023 — implies the legal system is a corrupt shambles.

It's all of a piece with the putsch itself. Trump is trying to exploit essentially the same manifest incapacity and systemic corruption he sought to exploit in January, and he'll try it again in 2024. If Biden acts as though this is a normal lawsuit and waits for the courts to weigh in, he will in effect be collaborating with Trump in his ongoing attempt to destroy U.S. democracy.

Luckily, Biden is in the handy position of being president of the United States and in possession of the documents in question. He can simply publish them on the White House website. Trump's despicable lies about executive privilege will be thrown in the trash, where they belong, as a fait accompli, and the public can learn about his administration's plots alongside the House committee. Whatever precedent may or may not say, the American people deserve to know every detail of how our previous president tried to seize power through fraud and violence.

By the same token, Attorney General Merrick Garland, a Biden appointee, is in charge of the federal law enforcement apparatus. If the House or Senate holds Bannon (or anyone else) in contempt for failing to appear, Garland can and should immediately send the FBI out to clap him in irons, seize any relevant documents, and bring him before the committee. (Incidentally, Congress itself could also legally do this using its inherent contempt power.)

Alas, I'll be surprised if Biden does either of these things. His commission on expanding the Supreme Court recently evinced a delusional, Lawfare-style holding that adding seats to the court would be wrong because the public believing the legal system to be corrupt is worse than it actually being corrupt. That's the kind of weak-willed, pathetic helplessness Trump is counting on to finish off American democracy — unless Biden comes to his senses and helps Congress do its vital work.

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