The defendants’ lawyers on the January 6 attack are expected to demand details of Trump’s communications before and during the attack, as well as who was entering and leaving the Oval Office that day.
If Trump’s lawyers, as expected, try to block the discovery in civil cases, the Biden White House and the Justice Department will have to decide whether to defend Trump’s prerogatives or step aside and risk weakening those same privileges. for Biden and his successors.
“For potential claimants, the problem will be to get your hands on documents and evidence that prove what [Trump] knew and what he did not know and when, “said renowned civil prosecutor Roberta Kaplan. “Almost certainly, Trump’s lawyers will claim that everything is subject to executive privilege and that the matter will take time to be litigated in court.”
Authority needs a current president and former president in disputes over a former president’s record is unclear. President George W. Bush issued an executive order in 2001 that appeared to give a former president a veto over the disclosure of his records. However, in 2009, President Barack Obama revised that policy, giving the current president more control.
In the end, the dispute is likely to be resolved in court, but the position of Biden and his prosecutor’s office may carry great weight.
“Even the question of whether Trump has the right to claim executive privileges is an unresolved issue,” said Norm Eisen, a Brookings scholar who served as the ethics czar at the Obama White House. “There will be problems of this type that will arise. Each administration has to deal with these issues. “
Former Obama White House adviser Neil Eggleston said he believes the Biden White House will decide that it can choose not to resist demands for Trump’s communications without undermining Biden’s future confidentiality claims.
“The argument would be that it opens the door,” said Eggleston. “The insurrection does not open the door to just question a presidential decision. … I think they will decide that the slope is not so slippery. “
Eggleston also noted that the courts have also ruled that executive privilege is not absolute and that it should yield when government misconduct is plausibly alleged.
“There may be a significant amount of litigation about this, but it comes out, because it will be in connection with irregularities,” he said.
“You’re going to have to find out what his intention was to show responsibility,” said George Conway, a prominent Trump critic and conservative lawyer who sued Arkansas state employee Paula Jones’ sexual harassment action against President Bill Clinton.
Asked on Tuesday about the new process, White House press secretary Jen Psaki offered a generic statement in support of the legal system, but refused to go any further.
“You know, it certainly supports the rights of individuals – members of Congress and others – to take action in the judicial process, but I don’t think we have another comment on that,” said Psaki.
A White House official later said that requests made in the dispute over Trump-era records would be directed to the National Archives.
“The White House fully supports efforts to investigate the January 6 events,” said Biden’s aide, who asked not to be named. “Trump’s White House records are in the custody of the National Archives and Records Administration, which will handle any requests for such records under the Presidential Records Act.
Conway and other lawyers said they expected Trump to try to claim privileges not only for the records and testimony of his advisers, but also to claim that he is immune from prosecution because the events in question occurred when he was in office.
Courts have determined that a president has such protection within the “outside perimeter of his authority,” which means that judges must seriously consider rejecting damages that threaten to interfere with a president’s official conduct.
“This will be a test of where the external borders are where a president can obtain absolute immunity,” added Conway. “This is going to be interesting.”
While many agree that Trump’s actions to overturn the election results and halt Electoral College procedures were political in nature, some of the former president’s activities on January 6 are not so easily categorized. When he rejected requests by parliamentarians to intervene or failed to call the National Guard, was he acting in his political interest or in his capacity as president and commander in chief?
Even though a process like the one initiated on Tuesday aims at Trump in his “personal capacity”, the entanglement of the legal process with its official functions seems inevitable.
When Trump spoke at Ellipse that day, he spoke from a pulpit bearing the presidential seal. In addition, noted Conway, White House lawyer Pat Cipollone would be deeply involved in Trump’s election-related deliberations.
“In my opinion, this is not a subject that the White House council should be involved in, even if it is giving the right advice,” said Conway.
Trump and his aides could also launch another obstacle to the Biden government in relation to current and expected lawsuits, asking the Justice Department to represent them or pay private lawyers to do so.
Such a claim may seem bizarre, but last year, the Justice Department filed a civil suit that Kaplan filed against Trump personally on behalf of writer E. Jean Carroll, who claimed that Trump raped her in a dressing room at a department store in New York three decades ago then falsely accused her of inventing.
Trump’s lawyers initially faced the case, but last September, the Justice Department took up its defense and declared that Trump’s denial was an official act he took as president and effectively immune from prosecution. A judge rejected this stance. An appeal to that decision is pending, with many lawyers watching closely to see if the Biden Department of Justice will reverse the course when a major dossier is due in April.
A Justice Department spokesman declined to comment on whether such a reversal is approaching or on the prospect of Trump or his aides seeking help in the newly filed dispute.
Even if Trump himself does not seek assistance from the Justice Department, potential witnesses such as former chief of staff Mark Meadows, Cipollone and other White House officials could ask DOJ for lawyers or financial assistance to pay for one.
One factor that could delay Biden’s need to make decisions about whether to support Trump over executive privilege is the slow – often glacial – pace of litigation. The discovery is likely to be on hold while a judge decides on motions to close the cases. This can take months. Resources can be extended for years, with presidential prerogatives normally respected during that period.
Case in point: a lawsuit the House filed in August 2019 to execute a subpoena to former White House Trump attorney Don McGahn is still pending after a trip to the Supreme Court and several hearings on the DC Circuit. More arguments are set for next week.
Another wildcard that may impact the legal dispute over civil action related to riots: the announcement by House Speaker Nancy Pelosi that she plans to form a Congressional committee to review the January 6 events.
The White House has pledged cooperation with the commission’s effort. Information approved by Biden for disclosure through this process can be brought to litigation. This can alleviate internal concerns about simply forking confidential records over civil litigation.
Private litigation and the commission may also become involved in the massive criminal investigation of the January 6 events, which has already resulted in charges against more than 230 suspects.
Even with figures like Senate minority leader Mitch McConnell (R-Ky.) Saying that Trump’s actions and statements deserve criminal scrutiny, Trump may be advised to take the Fifth Amendment to avoid testifying about these events to the commission or in court lawsuits. Trump’s advisers and advisers should also receive similar advice, the lawyers said.
Eisen said he recognizes the institutional imperatives to resist instigating the White House through the courts, but asked Biden’s White House not to influence Trump’s name in the riot-related litigation.
“The president’s actions were ultra come – were so far beyond the limits – that he does not deserve official deference, ”said Eisen. “There are limits. … Institutional and other prerogatives will be considered, but I think the best way is to tell him that he is on his own. “
Conway agreed.
“If I were the Department of Justice, I would say, we are not going to defend this case,” said Conway. “I think the Biden people are going to want to wash their hands of this. … Politically, are they really going to defend Donald Trump? “
Obviously, any decisions on matters of immunity and privilege will not be decided by the courts in an entirely abstract manner. Some judges may view Trump’s conduct on January 6 as so aberrant and dangerous that it will not give him the benefit of the doubt, as it would any other former president.
“Responsibility for the insurrection is the worst possible case, from Trump’s perspective, for these obscure issues to be resolved,” said Eisen. “Trump made a lot of laws – almost all of them bad for him.”