Former President TrumpDonald TrumpJan. 6 panel faces double-edged sword with Alex Jones, Roger Stone Trump goes after Woodward, Costa over China Republicans seem set to win the midterms — unless they defeat themselves MORE's inner circle is leaning on unanswered legal questions about the scope of his authority to invoke executive privilege in their defiance of the House Jan. 6 select committee's subpoenas.
The former aides and advisers are following the example set by Trump, who is fighting in court to block the panel from obtaining hundreds of pages of internal White House records and arguing that he has the right as a former president to keep them out of Congress's hands.
Lawyers for former White House chief of staff Mark MeadowsMark MeadowsRepublicans seem set to win the midterms — unless they defeat themselves Jan. 6 organizers used burner phones to communicate with White House: report Trump allies leaning on his executive privilege claims MORE and former strategist Stephen Bannon argue that it would be premature to comply with the subpoenas before the courts can address the dispute over the scope and weight of Trump’s executive privilege claims.
Democrats dispute the rationale offered by the Trump camp, accusing them of seeking to delay or stymie the Jan. 6 investigation, but the deadlock is raising the stakes for the committee as it seeks a quick and decisive court victory to secure the internal White House records. A ruling against the lawmakers could have a cascading effect among their would-be witnesses and sources.
The crux of Trump’s suit isn't about his former aides but about his presidential records, held by the National Archives and Records Administration (NARA), which had been set to release a sweeping trove of documents covering every top staffer and even Trump’s family on Jan. 6 following approval from President BidenJoe BidenSouth Africa health minister calls travel bans over new COVID variant 'unjustified' Biden attends tree lighting ceremony after day out in Nantucket Senior US diplomat visiting Southeast Asia to 'reaffirm' relations MORE.
But lawyers for those aides say that the former president’s lawsuit will resolve unanswered questions about the weight of Trump’s executive privilege claims now that he’s no longer in office and provide legal clarity for how they should proceed in regards to the committee’s subpoenas.
Evan Corcoran, Bannon’s defense lawyer in the criminal contempt proceedings that the Justice Department brought earlier this month for defying a subpoena, told a federal judge last week that his client’s case should not be rushed, partly because Trump’s lawsuit will guide Bannon’s legal defense.
“It'll be useful as we're shaping the arguments in the briefs for our motions practice to have the benefit of the judicial record and determinations that are made in that matter,” Corcoran said during a pretrial hearing earlier this month.
George Terwilliger, a former deputy attorney general under the George H.W. Bush administration who’s representing Meadows, has said that the sharp dispute over the scope of executive privilege between the select committee and Trump’s inner circle should be aired in court.
“Our correspondence over the last few weeks shows a sharp legal dispute with the committee,” Terwilliger said in a statement earlier this month. “The issues concern whether Mr. Meadows can be compelled to testify and whether, even if he could, that he could be forced to answer questions that involve privileged communications. Legal disputes are appropriately resolved by courts. It would be irresponsible for Mr. Meadows to prematurely resolve that dispute by voluntarily waiving privileges that are at the heart of those legal issues.”
House Democrats have dismissed those objections as an effort to hinder the select committee’s investigation ahead of next year's midterm elections, which could bring the probe to an abrupt halt if Republicans recapture the lower chamber, as many poll watchers expect.
“That's the same stall tactic that they've had for weeks,” said Rep. Pete AguilarPeter (Pete) Ray AguilarTrump allies leaning on his executive privilege claims All eyes on Garland after Bannon contempt vote First senator formally endorses Bass in LA mayoral bid MORE (D-Calif.).
“They're going to continue to, you know, make up reasons not to have conversations with us. It's not a new argument.”
For Meadows, the dance around whether to appear for a deposition has been going since he was first subpoenaed in September, “engaging” with the committee past his initial October deposition date until lawmakers lost patience and demanded November testimony, for which the former chief of staff failed to appear.
Meadows now risks the same consequences as Bannon if the select committee chooses to hold him in contempt and the House refers him to the Justice Department for prosecution for criminal contempt of Congress.
Rep. Jamie RaskinJamin (Jamie) Ben RaskinTrump allies leaning on his executive privilege claims Oversight panel eyes excessive bail, jail overcrowding in New York City Jan. 6 panel may see leverage from Bannon prosecution MORE (D-Md.), who sits on the committee, said the NARA case and the question of witness compliance “have nothing to do with each other.”
“That's just obfuscation. That's just confusion,” he told reporters last week.
The committee scored a swift initial victory in the NARA case earlier this month when a federal judge rejected Trump’s lawsuit to keep the records under wraps.
The D.C. Circuit Court of Appeals has granted Trump a brief reprieve by temporarily blocking NARA from turning over the records while it hears the legal challenge, which could soon head before the Supreme Court.
But the court also set a swift pace for Trump’s appeal, with oral arguments to be heard on Nov. 30, making it unclear just how long the former president will be able to run out the clock.
Democrats say that Trump and his allies are pushing a maximalist interpretation of executive privilege that is at odds with the law and how it has been employed by previous administrations. Raskin said that the Trump camp’s arguments about the privilege would expand it “beyond any credulity.”
“To say that it would apply would mean that there's an executive privilege covering insurrectionary activity in the country. Do we really want to say that there's an executive privilege for people to try to overthrow the U.S. government? ... I mean, it's just ridiculous. It makes the Constitution sound like some kind of death warrant for the democracy, and we know it's not that.”
“Anybody who was subpoenaed by a court or by the U.S. Congress to appear at a time and date certain with particular materials has a legal obligation to do that,” Raskin said. “You can't blow off a subpoena and you can't stay home and sit on your couch and talk to people about the Fifth Amendment or executive privilege, but not show up. You have a legal duty to show up.”
Whether former aides are obligated to comply with the subpoenas may only be partially settled by Bannon’s prosecution.
Bannon was not a White House employee on Jan. 6, leaving lawmakers confident he has little chance of prevailing in court, even as his legal team argues that executive privilege remains a valid excuse for defying the committee because presidents must feel free to consult their former aides.
And it’s still an open question whether Bannon will stand trial soon enough for the committee to point to his case as a way to deter witnesses from defying its subpoenas.
Less clear is whether the committee has an open and shut case with Meadows, who was still serving in the White House on the day of the attack.
Lawmakers largely dodged that question when asked by reporters if the committee will have a more difficult time seeking to enforce the subpoena against Meadows.
“Mr. Meadows has clear information that the committee needs and the committee will get access to that information and nobody can hide behind claims of executive privilege when you're talking about an assault on the Capitol that was a clear effort to stop the democratic process of counting electoral votes,” select committee Vice Chairwoman Liz CheneyElizabeth (Liz) Lynn CheneyThe GOP's post-1/6 playbook is clear — and it's dangerous Trump allies leaning on his executive privilege claims Two Fox News contributors quit over Tucker Carlson's Jan. 6 documentary MORE (R-Wyo.) told reporters last week.
How the D.C. circuit, and potentially the Supreme Court, decides Trump’s legal challenge against the committee’s document request could help shape the course and effectiveness of the investigation. In an appeals brief filed on Monday, lawyers for the select committee argued that the records are vitally important and of the utmost urgency.
“Delay itself would inflict a serious constitutional injury on the Select Committee by interfering with its legislative duty,” the filing reads. "The Select Committee needs the documents now because they will shape the direction of the investigation.”