Can the 6 January select committee overcome Donald Trump’s legal strategy to stonewall it?

As Donald Trump tries to shield his former aides from the insurrection probe, experts are warning that a timid response will allow the former president to do yet more damage to American democracy. Andrew Feinberg reports

Tuesday 12 October 2021 16:50
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<p>Liz Cheney and Bennie Thompson begin the first House select committee hearing on the 6 January attack on the US Capitol </p>

Liz Cheney and Bennie Thompson begin the first House select committee hearing on the 6 January attack on the US Capitol

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Since Democrats regained control of the House of Representatives in 2019, they have doggedly used Congress’s power to compel documents and testimony from Donald Trump and those in his orbit – and more often than not, they have butted up against a Trumpian wall of disparagement, denial, and delay.

At the outset of the House Intelligence Committee investigation that led to the first of Mr Trump’s two impeachments, then-White House Counsel Pat Cipollone sent a letter to House Democrats’ leadership which flatly rejected the legitimacy of the House’s investigative prerogatives.

“In order to fulfill his duties to the American people,” Mr Cipollone wrote on 8 October 2019, “the Constitution, the Executive Branch, and all future occupants of the Office of the Presidency, President Trump and his Administration cannot participate in your partisan and unconstitutional inquiry under these circumstances.”

Two years later – in spite of having been obliged to relinquish the presidency this past January – Mr Trump’s position has not changed.

In a letter to former White House Chief Strategist Steve Bannon – who last month received a subpoena of his own from the 6 January committee – Mr Trump’s current attorney, Justin Clark, wrote that the ex-president “instructs Mr Bannon to… invoke any immunities and privileges he may have from compelled testimony in response to the Subpoena…not produce any documents concerning privileged material in response to the Subpoena… and… not provide any testimony concerning privileged material in response to the Subpoena”.

And last week, Mr Trump sent a letter to the archivist of the United States, David Ferriero, in which he purported to invoke executive privilege over White House records which the archives – at the direction of the Biden administration – is preparing to turn over to Congress as part of the insurrection investigation.

In a statement, the former president claimed that the House’s probe is “not based in law or reality” and that he is asserting privileges “in defense of the Office of the Presidency”.

But legal experts say the man Biden administration officials like to call “the former guy” has no leg to stand on.

According to Harvard Law School Emeritus Professor Laurence Tribe, executive privilege does not exist for former presidents. “We have only one president at a time,” Mr Tribe told The Independent, “and the constitutional presumption is that the incumbent president is the best judge of the factors bearing on whether and when to invoke executive privilege to withhold documents or testimony.”

Because the House select committee investigating the 6 January insurrection must be reauthorised by the new Congress that begins in 2023, Mr Trump’s goal in dusting off his stonewalling strategy is to frustrate the committee’s efforts in the courts long enough to make way for a new Republican House majority that will allow the investigation to quietly die.

And while the committee’s chair and vice chair, Representatives Bennie Thompson and Liz Cheney, have vowed to pursue criminal contempt charges against those who do not cooperate, it’s unclear whether such efforts will receive a speedy hearing in the courts.

And yet, there’s reason to believe that Mr Trump could have less room to manoeuvre this time around. Norm Eisen, the Brookings Institution scholar who served as counsel to the House Judiciary Committee during Mr Trump’s first impeachment, predicted that the 45th president’s tactics could fail simply because Democrats have learned how to deal with him and his circle.

“The committee’s determination is evident in the extremely accelerated compliance schedule that they’ve laid down for both the documents and the testimony in these three waves of subpoenas,” he explained.

As he pointed out, the committee not only gave short turnaround times for documents and testimony from subpoena recipients but also dispensed with the usual practice of requesting voluntary compliance before issuing subpoenas in the first place – both signs that the House recognises the stakes of this investigation.

“This moment is nothing less than a one of existential threat from within to American democracy,” Mr Eisen said. “There’s an urgency that surrounds the moment that I… think will lead them to drive forward on court proceedings. It could be criminal contempt… it could be civil, and when the House votes, I anticipate that both will be authorised”.

Mr Eisen also said he believes that any court challenges on the grounds of privilege will be settled quickly because Mr Trump’s frequent use of privilege claims during his administration brought about numerous court rulings that can now guide future cases.

“The underlying legal questions that we face – about testimony in the McGahn litigation and about documents in the Mazers litigation – have now been addressed at length by the DC Circuit and the Supreme Court, respectively. So the soil has been tilled, that allows things to move faster,” he said. “The only question that the courts will confront is whether Trump has any residual executive privilege after he leaves office, which he absolutely does not”.

However, Mr Eisen does not think the House will use what could be its most powerful tool against recalcitrant Trumpworld witnesses: inherent contempt. Under this principle, were the House to invoke its own authority to hold witnesses in contempt instead of relying on the courts, it could pass a resolution ordering the House Sergeant-at-Arms (with the aid of US Capitol Police) to arrest witnesses and detain them until they testify.

Last month, House Majority Leader Steny Hoyer said that inherent contempt was “on the table,” and some House Democrats – most notably Maryland Representative and select committee member Jamie Raskin – have expressed support for invoking that authority for the first time since the 1930s.

Yet Eisen believes that doing so could touch off just the sort of lengthy legal fight that Democrats cannot afford right now.

“The issue is that… because it hasn’t been tested in a while, there’ll be a court battle over it,” he said.

If Democrats choose to authorise criminal contempt referrals, the ball lands in the court of Merrick Garland’s Department of Justice. The law governing contempt of Congress requires the US Attorney for the District of Columbia to present any contempt referral to a grand jury for possible indictment. While previous administrations have ignored this provision of the United States Code, White House Press Secretary Jen Psaki recently told the media that the Biden administration would “of course” honour the law’s requirements.

Glenn Kirschner, a former Assistant US Attorney for the District of Columbia, told The Independent that should Mr Garland and the Justice Department fail to act, the department would effectively be “endorsing everything Trump and his criminal cohorts have done for the last four or five years”.

And while he believes Mr Garland will ultimately act on a referral from the 6 January committee, Mr Kirschner warned that congressional inaction in the face of yet more open defiance would have far-reaching consequences.

“If Congress declines to enforce its own subpoenas, it is… neutering itself for all time – kiss oversight goodbye, because nobody’s going to comply with subpoenas anymore,” he said.

“They’d be doing untold damage to our democracy, because unless we can hold all of the insurrectionists accountable – including those who incited the insurrection and plotted and planned and schemed it – they’re going to do it again, they’re going to be successful, and they’re going to be completely unconstrained, because there have been no consequences.”

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