Lawyers for the urgent January 6 attack are expected to demand details of Trump’s communications before and during the assault, as well as who would come and go on the day of the Oval Office.
If Trump’s lawyers, as expected, try to block the discovery in civil cases, the Biden White House and the Department of Justice will have to decide whether to defend or set aside Trump’s privileges and take the risk to weakening the same privileges for Biden and his successors.
‘For potential plaintiffs, the problem will be to obtain documents and evidence that prove [Trump] knew and who did not know and when, ”said the well-known civil lawyer Roberta Kaplan. “Trump’s lawyers will almost certainly claim that this is all subject to executive privilege, and that the issue will take time to work in court.”
The exact authority of a current president and former president in disputes over the records of a former president is unclear. President George W. Bush issued an executive order in 2001 that apparently vetoed the release of his records. In 2009, however, President Barack Obama revised the policy and gave the current president more control.
Eventually, the fight will likely be resolved by the courts, but the position taken by Biden and his justice department could carry a lot of weight.
“Even the question of whether Trump has the right to exercise executive privilege is an unresolved question,” said Norm Eisen, a Brookings Institution scientist who served as an ethical tsar in the Obama White House. ‘There will be issues of this kind. Each administration must address these issues. ”
Former Obama White House attorney Neil Eggleston said he thinks the Biden White House will decide he can decide not to resist the demands for Trump’s communications without damaging Biden’s future confidentiality claims.
“The argument would be that it opens the door,” Eggleston said. ‘The uprising does not open the door to question a presidential decision. … I think they will decide that the slope is not so smooth. ‘
Eggleston also noted that courts have also ruled that the executive privilege is not absolute and that it must yield when the government’s misconduct is likely to be accepted.
“There can be a considerable amount of litigation about it, but it comes out because it will be related to wrongdoing,” he said.
“You will have to investigate what his intent was to show accountability,” said George Conway, a leading Trump critic and conservative advocate who pursued the case of Arkansas state employee Paula Jones against President Bill Clinton.
White House press secretary Jen Psaki on Tuesday asked about the new lawsuit and offered a general statement of support for the justice system, but declined to go further.
“You know, he certainly supports the rights of individuals – members of Congress and otherwise – to take steps through the judicial process, but I do not think we have a further comment on that,” Psaki said.
A White House official later said requests in the lawsuit for Trump-era records would be directed to the National Archives.
“The White House fully supports the efforts to investigate the events of January 6,” said Biden’s assistant, who asked not to be named. “The records of the Trump White House are under the supervision of the National Archives and Records Administration, which will handle all requests for such records that comply with the Presidential Records Act.”
Conway and other attorneys said they expect Trump not only to claim a privilege for his assistants, but also to claim he is immune to the case because the events took place when he was in office.
Courts have ruled that a president has such protection within the “outer perimeter of his authority,” meaning judges must seriously consider throwing out packages of damages that threaten to intrude on a president’s official action.
“It will be a test of where the outer borders are where a president can get absolute immunity,” Conway added. “It will be interesting.”
Although many agree that Trump’s actions to reverse the election results and disrupt the proceedings of the Electoral College were political in nature, some of the former president’s activities on January 6 are not so easily categorized. Did he act in his political interest or in his capacity as president and commander-in-chief when he rejected the calls of legislators to intervene or not to call in the National Guard?
Even if a case like the one filed Tuesday claims he is targeting Trump in his “personal capacity,” it seems inevitable that the legal process is entangled with his official duties.
When Trump spoke at the Ellipse that day, he was speaking from a speech that gave the presidential seal. In addition, Conway noted that White House councilor Pat Cipollone was apparently deeply involved in Trump’s election-related deliberations.
“In my opinion, this is not the case that the White House lawyer should be involved in, even if he is giving the right advice,” Conway said.
Trump and his associates will also be able to reproduce the Biden administration in connection with the current and expected lawsuit by asking the Department of Justice to represent them or to pay private attorneys for it.
Such a claim may sound strange, but last year the Justice Department jumped into a civil lawsuit that Kaplan personally filed against Trump on behalf of author E. Jean Carroll, who claimed Trump had her in a locker room three decades ago. raped the store in New York. then falsely accused her of making it up.
Trump’s lawyers initially fought the case, but last September the Department of Justice took over his defense, declaring that Trump’s denial was an official action he took as president and effectively immune to his case. A judge rejected this attitude. An appeal for the ruling is pending, and many lawyers are keeping a close eye on whether the Department of Justice in Biden will reverse its course when an important order is available in April.
A Justice Department spokesman declined to comment on whether such a turnaround was imminent, or the prospect of Trump or his aides seeking help in the lawsuit.
Even if Trump does not seek justice from the Department of Justice himself, potential witnesses such as former Chief of Staff Mark Meadows, Cipollone and other White House staff at DOJ can apply for lawyers or financial aid to pay for it.
One factor that could slow down Biden’s need to decide whether to support Trump because of executive privilege is the slow – often icy – pace of the process. Discovery is likely to be suspended while a judge rules on motions to dismiss the charges. This can take months. Appeals can last for years, with presidential privileges usually respected during that period.
Case in point: A case that the House filed in August 2019 to enforce a subpoena on former Trump White House attorney Don McGahn is still pending after a trip to the Supreme Court and several hearings before the DC Circuit. More arguments are being made for next week.
Another game card that could affect the legal battle over riot-related civil lawsuits: House Speaker Nancy Pelosi announced Monday that she plans to set up a congressional commission to investigate the events of Jan. 6.
The White House promised to cooperate with the commission’s effort. Information that Biden approves for release through the process could penetrate the case. This can allay internal concerns about simply providing confidential records due to a civil case.
The private lawsuit and the commission could also become entangled with the massive criminal investigation into the January 6 events, which have already led to charges against more than 230 suspects.
Since even figures like Mitch McConnell (R-Ky.), Senate minority leader, say Trump’s actions and statements deserve criminal investigation, Trump may be advised to adopt the fifth amendment to prevent the commission or lawsuits over these events. testify. Advocates and Trump advisers are likely to get similar advice as well.
Eisen said he recognizes the institutional imperative to resist being persuaded by the courts in the White House, but he will urge the Biden White House not to succumb on behalf of Trump in the riot-related lawsuit.
“The president’s actions were ultra vires “was so far out of the blue – that he did not deserve official respect,” Eisen said. “There are limits. … The institutional and other privileges will be considered, but I think the better way is to tell him that he is alone. ‘
Conway agreed.
“If I were the Department of Justice, I would say, ‘We’re not going to defend the case,’ Conway said. ‘I think Biden people will want to wash their hands of it. … Are they really going to defend Donald Trump politically? ‘
Of course, decisions regarding immunity and privilege will not be made exclusively by the courts. Some judges may view Trump’s behavior in connection with Jan. 6 as deviant and dangerous that they will not give him the benefit of the doubt, like any other former president.
“Accountability for the uprising is the worst possible case from Trump’s perspective to resolve these obscure questions,” Eisen said. “Trump has made a lot of legislation – almost everything is bad for him.”