Trump 'doesn't have a legal leg to stand on,' former deputy AG says. Is he running out the clock?
WASHINGTON – A federal judge’s rebuke of Donald Trump was only minutes old before the former president signaled that his legal fight to block documents from a House committee investigating the Jan. 6 Capitol attack was far from over.
The single sentence not only rejected Trump’s assertion of a post-presidency executive privilege claim to shield the documents, it also underscored a position shared beyond the four corners of Chutkan's ruling.
“Privilege is in the custody of the current occupant of the office,” said Michael Mukasey, who served as an attorney general in the George W. Bush administration. “It’s not a difficult issue.”
If it is Trump's intent, as spokesman Taylor Budowich suggested, to take the case to the Supreme Court if necessary, Mukasey's assessment and others' offer proper warning that the former president might not get the answer he seeks.
"It was very important that the judge issue a ruling that was clear, emphatic and fast," said Donald Ayer, a former deputy attorney general in the George H.W. Bush administration. "People need to understand that he (Trump) doesn't have a legal leg to stand on."
Trump launched the legal fight last month after President Joe Biden rejected Trump's effort to withhold hundreds of documents from the House Select Committee investigating the Capitol siege led by thousands of the former president's supporters.
In a letter to the National Archives, White House counsel Dana Remus wrote last month that Biden "determined that any assertion of executive privilege is not in the best interest of the United States, and therefore is not justified as to any of the documents."
Paul Rosenzweig, founder of Red Branch Consulting and a former senior counsel to independent counsel Ken Starr, who investigated President Bill Clinton, said Trump’s strategy is to delay until Republicans can drop the investigation.
“Trump is trying to run out the clock because, of course, his hope is that the Congress will flip, that the committee will dissolve and that the subpoenas will lapse of their own accord because the new Republicans will kill them,” Rosenzweig said. “Donald Trump has weaponized due process in an effort to avoid accountability.”
Rosenzweig said it is theoretically possible that every president could waive executive privilege for predecessors of another party, but he was skeptical that could change the advice they get from aides.
“In practice, it’s utterly bogus,” Rosenzweig said. “They’re far more likely to pull their punches at the time because they’re worried about Trump yelling at them – or Biden for that matter.”
Mark Rozell, dean of the Schar School of Policy and Government at George Mason University, called Biden’s refusal to back Trump’s claim “a huge rebuke.”
“Trump clearly has no basis for a privilege claim here, but he can delay the process potentially for a long time, which may be his intended strategy,” Rozell said.
Rozell said it was hard to imagine any documents related to Jan. 6 that could compromise national security or other concerns of national interest.
“If it is obvious that the former president is merely acting to avoid the release of information that is damaging to his own reputation, then I cannot imagine any high court giving any deference to him at all here,” Rozell said.
Chutkan ruled Tuesday that Biden was in the best position to balance the benefits of disclosure against the ability of future executive branch advisers to provide full and frank advice.
“At bottom, this is a dispute between a former and incumbent President,” Chutkan wrote. “And the Supreme Court has already made clear that in such circumstances, the incumbent’s view is accorded greater weight.”
Trump’s lawyer, Jesse Binnall, argued Wednesday that Biden can’t have the last word on Trump’s claim of executive privilege because he is a political rival. Binnall said Trump would suffer irreparable harm if the documents are released because his communications with aides would no longer be confidential.
“Moreover, his rights cannot be fairly evaluated by the incumbent president who lacks context and information concerning the documents in question,” Binnall wrote in his appeal of Chutkan’s decision. “Such a result would not only injure President Trump but also future presidents by chilling advice given by presidential aides.”
Congress passed a law to preserve presidential records in the wake of the Watergate scandal under President Richard Nixon. After he resigned, Nixon indicated he intended to destroy tape recordings made during his presidency, so Congress intervened to protect the recordings and other documents.
The law called on the National Archives and Records Administration to manage the documents for past administrations. Presidents could restrict access to sensitive documents for 12 years, but an exception is that records “shall be made available” to Congress “if such records contain information that is needed for the conduct of its business and that is not otherwise available.”
Alberto Gonzales, who served as an attorney general in the George W. Bush administration, said a former president's authority to assert privilege survives the office, but Biden's decision to reject the claim weakens Trump's argument.
Trump's claim is further diminished, Gonzales said, by the weight of the public interest in the information at issue.
"Given what happened on Jan. 6, it doesn't get any bigger than that," Gonzales said. "I would be surprised if he (Trump) didn't have to turn over the information."
Deborah Pearlstein, a professor of constitutional law at Cardozo Law School in New York, said executive privilege is about maintaining the integrity of the office of the presidency, rather than protecting a specific person’s communications. She said there is no categorical, unlimited claim to keep communications confidential.
“The person in the best position to understand the interests of the office of the presidency in keeping information confidential is the currently sitting president, so not Joe Biden, but whoever is the currently sitting president,” Pearlstein said. “It’s possible the appeals court will reverse it, but I’m not sure it’s likely.”
Remus, Biden’s White House counsel, notified the archivist Oct. 8 that Biden wouldn’t assert executive privilege because it “is not in the best interest of the United States.”
“Congress has a compelling need in service of its legislative functions to understand the circumstances that led to these horrific events,” Remus wrote. “The Documents shed light on events within the White House on and about January 6 and bear on the Select Committee’s need to understand the facts underlying the most serious attack on the operations of the Federal Government since the Civil War.”
However Trump’s case is decided on appeal could have ramifications for aides defying subpoenas from the committee. The House voted to hold Trump political strategist Steve Bannon in contempt and asked the Justice Department to prosecute him criminally for his refusal to cooperate. The chairman of the House panel, Rep. Bennie Thompson, D-Miss., called the refusal of former Justice Department lawyer Jeffrey Clark unacceptable.
The last successful criminal prosecutions for contempt of Congress were in the early 1970s, when G. Gordon Liddy was convicted and Richard Kleindienst pleaded guilty in the Watergate scandal.
The committee subpoenaed 10 former Trump aides Tuesday, including senior adviser Stephen Miller and press secretary Kayleigh McEnany. The committee subpoenaed six advisers Monday, including lawyer John Eastman, who wrote a memo outlining how Vice President Mike Pence could set aside Electoral College votes from seven states.
During the oral arguments Nov. 4 in Trump's case, one of his lawyers, Justin Clark, said the decision could be monumental.
“It’s also a case of first impression for this court and one that has a fact pattern that leads to kind of the end of a slippery slope,” Clark said. “It’s not only just an important argument and a monumental argument, but it’s one that’s going to have consequences down the line for generations potentially.”
Chutkan replied, “Thank you for reminding me of that.”