Image Credits: @ianhutchinson92 (Unsplash License)
Background
On October 18 2021, from the address of The Mar-A-Lago Club, Donald Trump and his legal team filed a 26-page lawsuit against the January 6th Committee: Trump v. Thompson (defendant Bennie Thompson is the Mississippi Democrat chairing the committee). The committee, formed in July of 2021 to investigate the January 6, 2021 U.S. Capitol insurrection, was in the mere early stages of their investigation when Trump initiated the suit. Trump’s legal team has asked a federal judge to invalidate requests from the select committee and block The National Archives, the custodian of presidential records, from turning over materials to Congress in response to the request. Additionally, it seeks to block the Archives from turning over any documents that may be covered by executive privilege. The lawsuit also asks the court to have the Archives identify all documents from Trump’s White House and allow Trump’s legal team to completely review them before sharing them with Congress (a process that could take years). Moreover, the suit alleges that the committee’s broad request for documents is unconstitutional, and asserts that the committee lacks a legitimate “legislative purpose.” As of early December, a federal court of appeals ruled that the committee can gain access to these documents, which leaves the Supreme Court as Trump’s final alternative to keep these records secret.
The court of appeals’ Thompson ruling accurately represents the current state of federal law as it relates to congressional investigations that calls for “persons, papers, and records” as necessary to assist their inquiries. However, one cannot predict what the Supreme Court would do once it hears Trump’s suit. This would not be completely unprecedented, as the court has departed significantly from this law to Trump’s advantage before. In Trump v. Mazars (2020), a congressional investigation sought access to Trump’s financial records, and the Supreme Court’s legal interpretation deviated from common understandings of federal law to allow Trump to keep those records private. The most relevant distinction between Mazars and Thompson, however, is that the Supreme Court digressed from federal law while Trump was a sitting president; Trump is now a private citizen. Ultimately, this prompts a worthy question: does Trump’s current lawsuit against the January 6th Committee have merit?
The January 6th Commission
The answer is complicated. The committee, created from a 222-190 vote in the House, is faced with the goal of investigating the events of domestic terrorism against the Capitol on January 6th and subsequently reporting to Congress and the President with their findings. The committee also seeks to propose potential measures with the hopes of preventing a recurrence of similar events. Throughout the summer, the committee issued various subpoenas to several Trump White House officials and others known to be associated with the former president and the insurrection. Notably, former Presidential Advisor Stephen Bannon was held in criminal contempt of Congress for defying the committee’s subpoena, citing Trump’s allegations of executive privilege. Next, the House Committee requested documents from the National Archives relating to prior Trump Administration actions from both during and after the January 6th riot, when Trump notified the Archives that he was formally asserting his executive privilege.
Executive Privilege
The doctrine of executive privilege, which Trump is claiming prevents the Archives from gaining access to certain documents, allows the executive branch to withhold certain confidential communications. Executive privilege is not explicitly stated in the Constitution; the privilege is rooted in the separation of powers doctrine. Since the Constitution separates the three branches of government, the executive branch has the power to manage its own activities, which is where the notion of executive privilege originated. However, this remains a murky issue. The only U.S. Supreme Court case on executive privilege is that of US v. Nixon (better known as the Watergate Scandal), which established that even a president has the legal duty to provide communication with his aides when the information pertains to a criminal case. In preparation for the criminal investigation into the Watergate Scandal, the special prosecutor in the Nixon case filed a motion for the production of certain tapes and documents relating to meetings between President Nixon and other White House staff members. At the time, Nixon filed a motion to quash the subpoena, citing executive privilege, but the District Court rejected President Nixon’s contention and ruled that the president could not protect himself from producing evidence in a criminal prosecution based on the executive privilege doctrine, although privilege is a valid shield in other situations. While this ruling set a precedent in the relation between executive privilege and criminal cases, where civil actions are concerned, the courts have mostly ruled to assess the application of executive privilege on a case-by-case basis, which means Thompson is operating in new territory.
Adding to the unprecedented nature of Trump’s suit is the fact a court has never ruled on whether a sitting president can overrule a former president on the topic of executive privilege. After the Biden Administration released a letter saying the current President will not uphold Trump’s assertion of privilege in terms of the documents requested, a discussion has spurred surrounding the scope of executive privilege. Moreover, a court ruling on this issue will have implications for how far past Presidents’ privilege really reaches, and whether it can overrule a sitting President’s stance. In sum, it is not that Trump’s assertion necessarily lacks merit, but rather, precedent.
“Legislative Purpose”
Regarding Trump’s claims surrounding the lack of “legislative purpose” of the January 6th Commission, the select committee has effectively brushed off the contention. Legislative purpose means “the end in which a law is directed.” In other words, the January 6th commission should have an idea that the outcome of their investigation will result in a particular nature of legislation. The aforementioned resolution to establish the committee has identified several policy areas that may be affected by the outcome of the committee’s investigation, meaning the potential for new and/or revised legislation. Notably, the committee may legislate on domestic extremists’ use of social media, intelligence agencies’ handling of threats, and the current state of Capitol security. While pressure lays on the committee to be successful in their investigative goals, the January insurrection highlighted the need for revised legislation in regards to present security threats and domestic terrorism. The January 6th commission was not formed without necessity, and, as such, for the commission’s investigation to result in no legislative recommendations would be unexpected.
A Brief History of Donald Trump’s Tactful Use of Lawsuits
Trump has a substantive past of threatening and filing lawsuits against those he wishes to intimidate. In the words of the former executive vice president of the Trump Organization Barabara Res: “That’s his M.O. He sues.” Trump has sued or been sued at least 4,000 times. From frivolous suits like that against Miss Pennsylvania and other individuals for using his surname, to more damaging lawsuits like those against the women who accused Trump of sexual assault and rape, it is clear that Trump has found litigation to be an effective intimidation and publicity tactic. In fact, Trump himself told Megyn Kelly, a former Fox News anchorwoman, that he views litigation as a “tactic,” saying that “sometimes I use it maybe when I shouldn’t.” Regarding Trump’s lawsuit against the January 6th committee, there is a level of legal basis, but the legitimacy and merit must be examined further to determine its standing.
Does Trump’s Suit Have Merit?
While the claim of a lack of “legislative purpose” for the January 6th Commission is unfounded, Trump’s suit does bring to light legitimate questions over the limits of executive privilege. Trump likely views this lawsuit as a tactic, as his council’s proposals will all but halt the commission’s investigations or stretch the process over an extended period. However, Trump is not the first person, nor the last, to use litigation in this way. While various prior Trump lawsuits make it easy to dismiss much of his litigation efforts as outlandish, it is without a doubt that his current suit has some basis. Additionally, it is difficult to predict how his claims will fare in court. Overall, a ruling in favor of Thompson would require a change in federal law concerning congressional investigation and a ruling in favor of the executive privilege of a former president over that of a sitting onet. In isolation, these two occurrences sound farfetched, however, considering the Supreme Court’s consideration in Mazars, the unprecedented nature of executive privilege in itself, it would not be prudent to completely dismiss these possibilities. The one fact that can be confidently asserted is that whatever does unfold over the coming months will undoubtedly have important implications for the future of executive privilege.