My latest NBC News Think piece came out this morning. Much of it duplicates what I wrote about last week, so if you read that, you can skip down to Parts II and III.

Part I: More on Trump and Executive Privilege

You can read my NBC piece here, or here:

Last week, former President Donald Trump said he will “defend executive privilege” in an attempt to withhold documents from the House committee investigating the Jan. 6 insurrection. Also last week, President Joe Biden rejected Trump’s claim that privilege should apply and authorized the White House records housed at the National Archives to be released to Congress. This suggests we may be heading to the courts.

Executive privilege refers to the power of the president and other executive branch officials to withhold certain forms of communication. Trump has threatened to “exert” executive privilege, which presumably means that he’ll file a lawsuit claiming he, not Biden, should decide whether the documents should be released. Such a lawsuit would certainly fail. Interestingly, it could also backfire by triggering a court finding that there is reason to believe the documents that the committee is seeking from the archives include evidence of criminal wrongdoing.

On Aug. 25, the House select committee issued a demand for documents from the National Archives and Records Administration and seven other executive branch agencies related to Jan. 6. The committee is clearly trying to understand what role Trump and his inner circle played in the violence, either by directly inciting the rioters or by creating a disinformation ecosystem that enabled the riot.

Trump is trying to claim that he has final authority over whether those documents can be released. But a statute Congress passed in 2014 specifically gives the final say over executive privilege (at least in the executive branch) to the incumbent president. Trump, while president, had the opportunity to try to shift the power to former presidents but made no such attempt. (Not that Trump worries about making inconsistent arguments, but while he was president he also continually argued in favor of the so-called unitary executive theory, which states that the president has complete control over the executive branch. That, now, would be Biden.)

To prevent Congress from getting the documents, Trump would have to file a lawsuit claiming the law giving Biden ultimate authority is unconstitutional. His best argument rests on language in one of the Nixon cases: The Supreme Court stated that “a former President may also be heard to assert” executive privilege. At the same time, the Supreme Court recognized that the incumbent is in the “best position to assess the present and future needs of the Executive Branch.” Constitutional scholar Jonathan Shaub is of the opinion that the Supreme Court “does appear to recognize a superior right in the incumbent president to assert privilege.”

Even if Trump managed to persuade a court that a former president, not the current president, should make decisions like whether the executive privilege applies, he would still face an uphill battle. The privilege is not absolute. Courts have held that executive privilege must yield when there is a “showing of need.” Therefore the select committee needs to establish only that it has a need for the documents and it should get them. The stated aim of the committee is to investigate the Jan. 6 attack and prevent future attacks. This surely meets the standard of “need.”

Trump, of course, is not afraid to file a lawsuit, even one he could lose, if he thinks he would benefit — either from using the courts as a stalling tactic or in the hope of muddying the waters. Reps. Bennie Thompson, D-Miss., and Liz Cheney, R-Wyo., the chair and vice-chair of the select committee, respectively, denounced any attempt to “defy” lawful subpoenas and “run out the clock,” presumably until after 2022, when Republicans may again control the House. Finding ways to defy lawful subpoenas, after all, was Trump’s tactic when he was faced with both the Mueller investigation and his impeachments.

But should Trump file a lawsuit and attempt to defy this particular subpoena, he would then need to worry about the crime-fraud exception, which states, quite sensibly, that a privilege cannot be used to conceal illegal behavior. The Biden administration has already indicated that it will seek to invoke the exception. In rejecting Trump’s claims of executive privilege, the White House counsel wrote, “The constitutional protections of executive privilege should not be used to shield, from Congress or the public, information that reflects a clear and apparent effort to subvert the Constitution itself.”

We do not have case law on whether the crime-fraud exception applies to executive privilege specifically, but if the Biden administration raises the issue, the court will need to address it. And it makes sense to apply the crime-fraud exception to executive privilege: Allowing executive privilege to cover up crimes committed by the executive would (obviously) empower and encourage lawlessness and Constitution-bashing behavior from the chief executive, who swore to defend the Constitution.

Moreover, while courts have not previously applied the exception to executive privilege, they have previously implied that they would. The U.S. Circuit Court of Appeals for Washington, D.C., for example, held that the deliberative process privilege (one component of executive privilege) “disappears altogether when there is any reason to believe government misconduct occurred.” The same court also noted: “It is true, of course, that the Executive cannot, any more than other branches of government, invoke a general confidentiality privilege to shield its officials and employees by the proper government institutions into possible criminal wrongdoing.” Moreover, executive privilege only covers communications “in performance of [a president’s] responsibilities” of office, and a president’s responsibilities and duties of office cannot include attempts to “subvert the constitution.”

We can expect the question of the crime-fraud exception to unfold procedurally the way it does with attorney-client communications: After Trump files his lawsuit, Biden or perhaps the Justice Department would file a motion asking the court to consider whether the crime-fraud exception applies to the material. The motion, of course, would include evidence supporting the claim that the documents include evidence of wrongdoing.

Given what we already know, it is a good bet that the material sought by the committee contains some evidence of wrongdoing. For example, if documents the House has subpoenaed show that Trump or any members of his inner circle intended to delay or hinder the counting the electoral votes on Jan. 6, they would be in violation of 18 U.S.C. 1505. And we already know that Trump and his inner circle discussed how to delay the counting of the electoral votes. See the Eastman memo, which outlined a plan and a legal rationale for overturning the results of the election. Last week, the Senate Judiciary Committee released a report concluding, “In attempting to enlist DOJ for personal, political purposes in an effort to maintain his hold on the White House, Trump … arguably violated the Hatch Act.”

Trump may very well still try to use lawsuits to run out the clock on these congressional document requests. This strategy likely would not prevent Congress from getting the documents. But it could force a court to rule that there is reason to believe the documents in question include evidence of wrongdoing — a legal lose-lose scenario that any lawyer worth his retainer would be wise to recommend against.

Part II: Two Questions from Social Media About This Subpoena (and others)

The select committee has given spring as the deadline to have most of its work done and November as the deadline to be entirely finished. I see no reason they won’t make that deadline.

Courts disposed of the election fraud cases quickly (under a few months) Delaying these documents even 4 or 5 months wouldn’t matter, even if Trump managed to delay it that long, which I don’t think he can. Records are duplicative. The select committee is getting plenty of others, which Trump can’t even pretend to control.

I suspect that the issue can be dispensed in a motion filed after the inon, sayitial lawsuit is filed. A motion requires time for Trump to respond to the motion and the court to make a ruling. If this gets tossed out on, say, a motion raising the issue of whether the crime-fraud exception should apply to the executive privilege, what would be left for Trump to appeal. Can you imagine this claim on appeal? The crime-fraud exception should not apply to executive privilege because a former president has the right to conceal official documents containing evidence of wrongdoing. It’s laughable.

Here’s the thing:

Several people told me that criminal referrals should have been filed at midnight when the subpoena came due (even though it was still 5 days before anyone was supposed to testify, and even though the committee likely already had copies of the documents it was requesting:

That would have made for some great theater. It would have raised the temperature. Trump also provided great theater.

So many people want to live in Trump’s world where we live for the thrill of landing blows on our enemies. If you want action, you won’t like rule of law or democracy, but you’ll love autocracy, which moves swiftly and is action-packed. The Facebook whistleblower said: “It’s easier to inspire people to anger than it is to other emotions.” Democracy and due process are dull and slow-moving.

When “news” becomes a show, what matters is who puts on the best show.

There is no showman better than Trump.

My advice: Don’t try to out-Trump Trump. Don’t try to out-fascist the fascists. Then we’re no better than they are, and there is no rule-of-law party for people to vote for.

Part III: The Magic Bullet Theory

The Magic Bullet theory goes like this, “There is something the government (or Democrats) can do which will save democracy if only they would just do it already.”

On Twitter there is this sense of frantic urgency: If the subpoenas are not enforced immediately then rule-of-law is dead.

I am not exaggerating. That is what is being said (and liked) by tens of thousands of Twitter users.

The idea that anything that comes out of the select committee has the ability to save democracy is based on what I think of as the Magic Bullet Theory.

The subpoenas are being issued by the select committee which, when it is finished, will issue a report like this one, which was released last week by the Senate Judiciary Committee.

When I say that saving democracy requires all of us working on the next election, it generates instant pushback, “But what about . . . ”

When someone else says, “Saving democracy requires throwing them all in jail,” there is literally no pushback. When I suggest that jailing Trump will not persuade these guys to be nice. . .

 

 

I get lots of pushback. Right now, Trump is glorifying the insurrectionists.

Trump Celebrates Ashli Babbitt’s Birthday, Says There Was ‘No Reason’ For Her Death https://t.co/rpW4mX1ISS via @TPM

— Josh Marshall (@joshtpm) October 12, 2021

The idea that imprisoning people will break up the Trump-party simply misunderstands the nature of the party.

Like others, I hope that the law catches up to Trump and the others who incited the insurrection. What I take issue with is the idea that the criminal justice system can solve our political problems.

A question for you all, particularly those who are not on Twitter. Are these attitudes (the magic bullet theory / the desire for “action”) unique to Twitter, or do you see it elsewhere? What about the bashing of Democrats for not doing that something that will end the threat of fascism? Other ideas? Write to me here: questionforteri at gmail.com