Trump Invokes Magical Ex-President Executive Privilege From Golf Cart In Jan. 6 LOLsuit

You know, to protect the separation of powers.

(Photo by Win McNamee/Getty Images)

Donald Trump’s legal team has filed yet another doozy of a motion in an attempt to bollix up the January 6 Select Committee’s search for evidence about the attack on the Capitol. Even judged by its own standards as a brazen delay tactic meant to avoid disclosures until 2023 when Republicans are likely to take over the House and eighty-six the investigation, Trump’s legal strategy is an impressive mixture of bullshit and chutzpah in equal measures.

The former president is seeking to enjoin the National Archives from producing his presidential records in response to a request from the Select Committee. Here on Planet Earth, the Presidential Records Act clearly states that “subject to any rights, defenses, or privileges which the United States or any agency or person may invoke, Presidential records shall be made available … to either House of Congress, or, to the extent of matter within its jurisdiction, to any committee or subcommittee thereof if such records contain information that is needed for the conduct of its business and that is not otherwise available.”

The law further provides that, in cases where the former president asserts a claim of privilege which is not sustained by the incumbent president, the Archivist shall release the requested documents absent a court order. This would seem to provide a fairly straightforward avenue for the former president to present his claim of privilege, or whatever remains of it now that he’s out of office, for adjudication by the court.

And yet! The plaintiff has instead opted to file a brief treating the Presidential Records Act as a nullity and urging the court to adopt the four-part standard set out in Trump v. Mazars to evaluate the request for presidential records in possession of the National Archives. You know, to protect the institution of the presidency and preserve our sacred separation of powers.

Sure Mazars involved a sitting president and a congressional subpoena for his personal records held by a private business. But why shouldn’t the same standard apply to a cranky old geezer on a golf cart objecting to enforcement of a duly enacted statute with respect to documents in possession of the federal government?

“Defendants’ claim that a statute that was passed with bicameralism and presentment can somehow vitiate constitutional limits on Congress’s power to request information is wrong,” huffs the president’s brief, waving away a statute enacted in 1978. And speaking of ahistorical nonsense, the former president repeatedly invokes the Supreme Court’s ruling in Nixon v. GSA conferring some residual privilege authority on ex-presidents, while completely ignoring the main holding that confirms presidential records remain the property of the US government.

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But if the right of a former president to assert privilege is not to be questioned, the plaintiff has significantly less respect for the views of the actual, sitting chief executive.

President Trump acted in good faith in reviewing responsive documents and identifying only a subset as being privileged. President Biden, however, acted broadly, deciding to waive privilege to all documents identified. President Trump acted consistently with custom and practice while his successor took the unprecedented step of attempting a blanket waiver of privilege.

“This judicial check on waiver ensures the predecessor a due process safeguard against the type of politically motivated privilege waivers by an incumbent president present here,” argues the former president, citing exactly no precedent or legislative history to bolster the claim, before going on to demand a preliminary injunction on further disclosures to avoid “creating such a precedent—that a sitting President can release any and all materials of his predecessor at a whim—would undoubtedly shake the foundations of presidential communications.”

Similarly the former president urges the court to “employ the avoidance cannon” [sic] to prevent giving “unfettered discretion to the incumbent President.” Which is quite the face turn from the guy who argued just two years ago that the unitary executive possessed the awesome power to evade all civil and criminal process based on “blanket executive immunity.”

In short, this lawsuit is the verbal equivalent of a handful of ball bearings hurled over the bad guy’s shoulder as he shouts “You’ll never take me alive, copper!” in a B-movie.

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Or, as Select Committee Chair Bennie Thompson and Vice Chair Liz Cheney put it, “The former President’s clear objective is to stop the Select Committee from getting to the facts about January 6th and his lawsuit is nothing more than an attempt to delay and obstruct our probe.”

Trump v. Thompson [Docket via Court Listener]


Elizabeth Dye lives in Baltimore where she writes about law and politics.