Former Trump officials and advisers should assume that no presidential privilege will justify their withholding testimony and documents from the panel.
Former Trump officials and advisers should assume that no presidential privilege will justify their withholding testimony and documents from the panel.
T he D.C. Circuit federal appeals court has roundly rejected former president Donald Trump’s efforts to block the House January 6 Committee’s access to his communications. The ruling came in a unanimous 68-page opinion issued on Thursday afternoon by a three-judge panel.
The court’s decision strengthens the committee’s hand, including against former Trump officials and advisers who have derivatively relied on the former president’s privilege claim as a rationale for resisting subpoenas for testimony and documents.
In a sign of how the ground has shifted, the committee — almost simultaneously with the issuance of the court’s ruling — released a press advisory that on Monday evening, it will consider a report recommending that the House hold former Trump chief of staff Mark Meadows in contempt and refer him to the Justice Department for prosecution. Meadows had broken off cooperation with the committee earlier this week and filed a lawsuit against both the committee members and House speaker Nancy Pelosi (D., Calif.). The suit relies substantially, though not exclusively, on Trump’s privilege claims.
Through a spokeswoman, Trump indicated that he will appeal the appellate court’s ruling to the Supreme Court. The D.C. Circuit has given the former president two weeks to seek the high court’s intervention, during which time a stay will remain in effect, blocking the National Archives from supplying the committee with more material.
As I have contended previously, Trump has been playing a weak hand here, though his position is not as frivolous as the committee has suggested. In a poorly reasoned Watergate-era decision, Nixon v. Administrator (1977), the Supreme Court opined that former presidents retain some degree of executive privilege (how much depends on the circumstances). This teaching is in tension with the Constitution’s framework, in which all executive power is reposed in the incumbent president. And, as a practical matter, a former president’s assertion of privilege is likely to be shown little deference if it is not supported by the incumbent president, at least if a court finds that the need for disclosure is significant.
Nevertheless, that is something for the courts to assess, particularly after the Supreme Court, in Trump v. Mazars (2020), encouraged the political branches to litigate disputes over congressional access to executive-branch testimony and records.
Yet the committee (and, for that matter, the Justice Department in its indictment of former Trump adviser Steve Bannon) has scoffed at the notion that Trump could invoke privilege. To my mind, the committee has confounded its accurate assessment that the former president’s invocation is weak with an inappropriate conclusion that Trump and, derivatively, his subordinates, have no right to litigate a privilege claim undeniably rooted in Supreme Court precedent.
Clearly, the committee is taking this position because, from its perspective, time is of the essence. Drawn-out litigation is not an option.
If the Republicans retook control of the House in the 2022 midterm elections, and the committee were still working at that point, the new majority would surely put the committee out of business. The heavy influence that Trump still wields over House Republicans is only part of the rationale for this. Speaker Pelosi was breathtakingly heavy-handed in establishing and staffing the committee, taking what even she conceded was the “unprecedented” step of refusing to seat two of the appointees chosen by minority leader Kevin McCarthy (R., Calif.) — senior Republican congressmen Jim Banks (Ind.), whom McCarthy named ranking member of the committee, and Jim Jordan (Ohio), both of whom are ardently pro-Trump. The stunning rebuff convinced McCarthy that the GOP’s best course was to oppose the committee.
This was an understandable reaction, but strategically foolish. When McCarthy pulled his members out rather than naming two appointees in place of Banks and Jordan, Pelosi promptly named to the committee Liz Cheney (R., Wyo.) and Adam Kinzinger (R., Ill.), who are deeply opposed to Trump and among the few Republicans who voted to impeach him. Their participation enables Pelosi to portray the committee as bipartisan, even though GOP leadership regards the committee as illegitimate.
More significantly, the committee has real power, including subpoena power, so it is going to have real impact. By declining to have any of his members participate, McCarthy left himself with no allies on the committee — no one to challenge its actions from within, attempt to narrow its information demands, or push back against the partisan Democratic narrative about the Capitol riot (an “insurrection” that amounts to “domestic terrorism” and was in fact worse than any previous terrorist attack — even 9/11 — because it was an “attack on democracy itself”).
Given that the media-Democrat complex strongly supports the committee, House Republicans were never going to succeed in delegitimizing it — except among Trump sympathizers who were already skeptical. Now, McCarthy and his caucus are left whining on the sidelines while the committee becomes a juggernaut — one that will be able to wind up its work by late spring. At that point, it will issue a damning report, sure to implicate not only Trump but his congressional Republican supporters, right as the midterm-election campaign heats up.
The wind is now gusting at the committee’s back, thanks to the D.C. Circuit. Putting aside that Trump had a weak case, he would not have had much of a chance even had his position been stronger. It would be difficult to conjure up a three-judge D.C. Circuit panel that would tee up worse for him than the one he drew: two Obama appointees, Judges Robert Wilkins and Patricia Millett (the latter wrote the decision), along with Judge Ketanji Brown Jackson, whom Biden elevated to the appellate court after she’d served as a district judge appointed by Obama.
There’s no two ways about it: The court’s decision is a sweeping victory for the committee and stamps the judicial imprimatur on the Democrats’ Capitol riot narrative. Judge Millett’s opinion endorses President Biden’s assessment that the riot was an “insurrection.” Consequently, though executive privilege is an important separation-of-powers prerogative, she approvingly related Biden’s assessment that the “unique and extraordinary circumstances” of the mob attack on the Capital create a “compelling need” for Congress to investigate “an unprecedented effort to obstruct the peaceful transfer of power,” which was “the most serious attack on the operations of the Federal Government since the Civil War.”
With that as its premise, the court proceeded to summarize its reasons why Trump’s privilege claim had to be rejected:
(1) President Biden’s carefully reasoned and cabined determination that a claim of executive privilege is not in the interests of the United States; (2) Congress’s uniquely vital interest in studying the January 6th attack on itself to formulate remedial legislation and to safeguard its constitutional and legislative operations; (3) the demonstrated relevance of the documents at issue to the congressional inquiry; (4) the absence of any identified alternative source for the information; and (5) Mr. Trump’s failure even to allege, let alone demonstrate, any particularized harm that would arise from disclosure, any distinct and superseding interest in confidentiality attached to these particular documents, lack of relevance, or any other reasoned justification for withholding the documents. Former President Trump likewise has failed to establish irreparable harm, and the balance of interests and equities weigh decisively in favor of disclosure.
There is much more to it than that. In particular, the court emphasized that executive privilege belongs to the government — specifically, to the executive branch — and is thus intended to serve the interests of the United States. That is, it is not a personal privilege belonging to the individual who happens to inhabit the Oval Office (or, even less, who inhabited it in the past but no longer does). As the court saw it, Trump is not really claiming that the government needs to preserve executive confidentiality — say, because of some foreign-policy or national-security imperative. Rather, the former president’s motivation is personal: He does not want his political opponents to be privy to conversations and actions by which he endeavored to reverse his defeat in the 2020 election.
Centrally, the committee rejects what is the main contention of the former president and his supporters, namely, that the violent uprising at the Capitol is separate, distinct, and not causatively linked to the efforts by the then-president and his campaign to overturn the election by legal actions and political arm-twisting.
Seeing a straight cause-and-effect line from the “Stop the Steal” shenanigans to the riot, the committee appears to be narrowing its lens on a few discrete aspects of the scenario: (a) the Trump campaign’s determination to challenge the election outcome in the courts, despite the absence of evidence of fraud on a scale sufficient to have affected the result; (b) alleged Trump coercion of officials in states won by Biden to review and decertify their popular-election results (and even have GOP-majority legislatures reverse those results); (c) the pressure Trump appears to have put on the Justice Department to convince states that there were significant concerns about election fraud; (d) coordination between Trump and congressional Republicans to derail Congress’s acknowledgment, at the January 6 joint session, of Biden’s victory; (e) the pressure put on then–vice president Mike Pence to claim baseless authority to refuse to count state electoral votes certified for Biden; (f) the role that Trump’s election-theft rhetoric may have played in instigating the riot; and (g) the actions and omissions of Trump while the Capitol was under siege.
Unless the Supreme Court decides to wade into this morass (which I believe is highly unlikely), the D.C. Circuit’s ruling will be final. If so, it drastically undercuts the objections of Trump and his supporters to the committee’s information demands.
The most timely example of this may be Mark Meadows.
I’ve noted that Steve Bannon, who was not formally a Trump staffer in the post–2020 election time frame (he was an outside adviser), presented the weakest case for executive privilege. Meadows, to the contrary, is the strongest case. As the White House chief of staff, he was in constant communication with the president and vice president, a key player in formulating and executing administration policy. Meadows is also represented by the incomparable George Terwilliger, a former top Justice Department official and the savviest of litigators (and a friend of mine, for what it’s worth). Terwilliger is as knowledgeable as any expert regarding not only the theory of executive privilege but also the formal opinions construing it by DOJ’s Office of Legal Counsel. Unless overruled by the president or the attorney general, those memos set executive-branch policy on privilege issues.
Unlike the former president and some other subordinates who have substantially resisted cooperation with the committee, Meadows endeavored to negotiate and compromise. As the Supreme Court acknowledged in Mazars, that is the way interbranch disputes are supposed to be worked out. Meadows thus supplied the committee with hundreds of pages of relevant documents but reasonably maintained that he could not be asked about such matters as his communications with Trump and Pence, at least until the courts resolved Trump’s privilege claim. The cooperation broke down when Meadows learned, from Verizon, that even as the committee was negotiating with him, it had subpoenaed his cellphone records for a four-month period — from October 1, 2020, through January 31, 2021 — which would obviously encompass privileged and personal matters of no relevance to the Capitol riot. Meadows thus filed his aforementioned lawsuit on Wednesday.
The suit makes a number of points that merit discussion. Meadows alleges that the committee lacks legislative authority to issue its subpoenas because it has not complied with the House guidance that established the committee. More to the point, he argues that Congress has no authority to conduct what is, de facto, a criminal investigation; and that it may not seek information just for the purpose of publicizing it, rather than for a concrete legislative purpose. Meadows contends that Biden is recklessly undermining the separation of powers by waiving privilege even though it has been longstanding executive-branch doctrine that a president’s closest aides are immune from congressional subpoenas — if Congress may subpoena the chief of staff, why not the president or the vice president? And Meadows stressed that the committee was pressing for his information even as the federal courts were deliberating over Trump’s privilege claim.
Alas, the problem for Meadows is that the top federal appeals court is no longer deliberating; it has decided the case, probably with finality, and Trump has lost on every significant point. The D.C. Circuit panel expressed unqualified approval of the committee, convinced that it not only has a legislative purpose but a vital one. Far from second-guessing Biden’s waiver of privilege, the court opined that it was prudent, a careful balancing of executive-branch confidentiality interests against the “imperative” needs of the committee. Meadows may be right that Biden, in fact, is imprudently elevating partisan politics over a president’s need to shield top aides from congressional inquiries; but that is Biden’s call — it seems inconceivable that a court, including the Supreme Court, is going to substitute its judgment for the incumbent president’s on the matter of what’s best for the executive branch.
Perhaps I’ll be wrong, and the Supreme Court will decide it wants in on this controversy. The better bet, though, is that the D.C. Circuit’s ruling will stand. Going forward, Trump-administration officials and advisers should assume that no presidential privilege will justify withholding testimony and documents from the January 6 Committee. The sitting president is not going to assert it, and the federal courts in Washington will back the committee.