What I’m about to tell you first appeared in an article I wrote for Just Security, published by New York University School of Law entitled, “Why a Trump Lawsuit to “Protect” Executive Privilege Could Backfire: Inviting the DC court to consider whether the crime-fraud exception applies.”
For more details, links, legal citations, see.
The Select Committee investigating the January 6th attack has demanded that various federal agencies hand over documents related to the question of Trump’s criminal liability in connection with the January 6th insurrection.
Yeah, right 🥱
Not only would he lose, but such a lawsuit would likely backfire on him spectacularly.
First, I’ll tell you why it will lose. Then how it would backfire.
It’s generally accepted that the privilege is held by the sitting president, and the Biden administration already said it won’t assert executive privilege over this material.
So most likely his suit would be thrown out on a motion to dismiss.
If the court did consider his arguments, it would likely apply one of the exceptions and conclude that these records are not privileged.
Under Nixon v. Sirica, the court could reject Trump’s claim on the grounds that the committee has made a “compelling showing of need.”
Under Nixon v. Fitzgerald the court could find that the material isn’t privileged because it was not “‘in performance of [a President’s] responsibilities of office” or and “made ‘in the process of shaping policies and decisions.’”
Trump isn’t afraid to file lawsuits that are destined to lose—if he thinks such a lawsuit will buy him time.
But, if Trump brings this lawsuit, it would raise the question of whether the crime-fraud exception applies.
While no court has yet specifically carved out a crime-fraud exception to the executive privilege, courts have come close. (US v. Nixon)
Presumably, a crime-fraud exception to executive privilege would function like the crime-fraud exception to attorney-client privilege. In other words, a judge would look at the material in camera to see if the documents contain evidence of wrongdoing.
Given what we already know, these documents are highly likely to contain evidence of criminal wrongdoing or unlawful conduct. Given what the committee has asked for, and what we know, there would certainly be evidence that Trump ” induced” the obstruction of an official proceeding by disorderly conduct in a restricted building, thus violating:
I mean, that’s the least of it, right?
This means that if Trump brings a lawsuit to “protect” executive privilege, the lawsuit could trigger a finding from a court that the materials sought by the select committee contain evidence that Trump engaged in criminal behavior.
Imagine that. Bingo, right out of the gate, before a trial of any kind, a court rules that there is evidence that Trump committed a crime.
This is why I don’t think he’ll dare bring such a lawsuit—at least if he has good lawyers advising him.
