From his faux Resolute Desk at Mar-a-Lago, former President Donald Trump can still wield a wrecking ball that damages the congressional investigation of the insurrection—even if he loses his ongoing battle in the nation’s highest courts.
Lawyers widely expect Trump will, indeed, fail at his attempt to assert “residual” executive privilege to keep damning documents shielded from the House committee investigating the Jan. 6 insurrection. But constitutional scholars warn that judges appear poised to give him a slight opening that could severely delay congressional investigators and give resistant witnesses legal ammunition in their own court fights.
The potential delays matter even more now that tight-lipped Trump loyalists are stacking up, with news in recent days that former White House Chief of Staff Mark Meadows and ex-Assistant Attorney General Jeff Clark have put themselves on the same “contempt of Congress” path of martyrdom as Steve Bannon for relying on the ghost of Trump’s executive privilege to defy subpoenas and refuse to testify.
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The fate of all their cases essentially rests on what happens in Trump’s Republic-shaking battle of power, legal scholars tell The Daily Beast.
Any day now, a three-judge appellate panel in the District of Columbia is set to decide whether Trump’s claims of out-of-office authority have any merit. But if the judges do what they usually do—create a legal “test” that’s applicable in future cases—they will have handed Trump and his loyal lieutenants a wrench that can be tossed into the committee’s engine, said attorney Kel McClanahan.
“They seemed to want to create a balancing test,” he told The Daily Beast. “It’s going to allow Trump to keep filing these lawsuits and keep delaying, delaying, delaying—all because the circuit may not say that there’s no way any former president could ever win.”
McClanahan, an attorney who specializes in national security matters, isn’t part of the lawsuit but has made legal filings in support of the committee and against Trump.
“If it isn’t shut down now, it’s going to play out in Bannon’s contempt trial, in motions to quash testimony,” he said. “It’s going to stop Biden from getting information on his own.”
The bipartisan House select committee wants to determine what role, if any, the Trump administration played in causing the Jan. 6 insurrection. When President Joe Biden broke tradition and approved early release of the previous administration’s records from the National Archives, Trump sued in October to block the delivery of hundreds of pages of emails, notes, and call and visitor logs.
The lawsuit’s main premise is that an ex-president retains executive privilege that can overrule a current president’s executive authority.
Trump lost the first round in federal district court on Nov. 9, when Judge Tanya S. Chutkan wrote that the former president’s case “appears to be premised on the notion that his executive power ‘exists in perpetuity.’ But Presidents are not kings, and Plaintiff is not President.”
On Nov. 30, a panel of federal appellate judges listened to opposing arguments, largely agreeing with the Justice Department and reserving their most doubtful, scathing comments for Trump’s lawyers.
But constitutional experts monitoring the case noticed that judges refused to simply shut down Trump’s attempt to exert power from outside the White House, indicating a desire to create some kind of binding legal standard.
During the appellate court hearing last week, Judge Robert L. Wilkins asked, “We don’t just flip a coin or draw straws or something. What test are we supposed to use?”
Meanwhile, another member of the judiciary panel, Patricia A. Millett, made clear that judges will be weighing in on this case when she said, “It can’t be that we all go to court and we go, ‘Incumbent president wins. Thank you for playing.’”
But having judges create any sort of test is exactly what Trump’s lawyers are trying to do here.
A test would simultaneously strengthen the legal challenge laid out by Bannon in his ongoing criminal case, warns Jonathan David Shaub, a law professor at the University of Kentucky who specializes in presidential power.
“Trump is certainly claiming this residuum of power that has no identifiable source,” Shaub said. “If the court goes down the road of having judges decide which claim is valid, then Bannon has a much more legitimate argument that he didn’t have to comply until a court decided whose claim is more viable. It gives credence to this idea that there’s some question about who has the authority to allow Bannon or Meadows to testify.”
If a legal test exists, then Bannon, Clark, Meadows and anyone else who claims Trump has the power to keep their lips shut can ask a judge to conduct a test to see if their individual case meets the new standard—a legal game that can run the clock until the 2022 election and perhaps the end of the Democrat-led committee.
“That’s the potential danger. It may create a precedent that enables others who are subject to testimony... to claim that a standard has been established and it applies to them,” said Mark J. Rozell, a political scientist at George Mason University.
“There’s a certain bravado and showmanship among these guys that they seem to feed off, and it strikes me as profoundly narcissistic. They don’t care what the implications are to the broader system. It’s not like anything I’ve seen before,” Rozell said.
The alternative? Have the judges just say no.
“If the judges say that this is a presidential authority that belongs to the current president, then… Bannon and Meadows have much less of a claim,” Shaub said.
Either way, Trump’s lawsuit against the committee’s chairman, Rep. Bennie G. Thompson, won’t end here. Whoever loses is expected to appeal to a higher court. Lawyers who spoke to The Daily Beast said they expect Trump to slow-walk the case by requesting that the full appellate circuit in the District of Columbia rehear the case, then ultimately the Supreme Court.
The office of the former president did not respond to a request for comment. Neither did his attorneys in the case. Trump is being represented in appellate court by Jesse R. Binnall, who helped his conspiracy-laden ‘Stop the Steal’ legal challenge of election results in Nevada, and Justin Clark, a former campaign lawyer who allegedly called Rudy Giuliani a “fucking asshole” over his bogus legal maneuvers to overturn the 2020 election.
The Jan. 6 committee did not respond to questions about potential concerns over whether Trump’s lawsuit could delay its work.
While all three judges on the D.C. panel were appointed by Democratic presidents, the one that seemed most resistant to even considering Trump’s arguments was Judge Ketanji Brown Jackson, who was Biden’s very first appellate court pick. Notably, she presided over a similar case back in 2019, when she rejected Trump’s claim of “absolute immunity” to keep then-White House Counsel Don McGahn from testifying before Congress about Russian intervention in the 2016 election. In her decision she noted, “Presidents are not kings.”
Rozell, who serves as dean of George Mason University’s public policy school, said judges should be careful to not play right into Trump’s hand.
“Trump himself doesn’t really care about institutional prerogatives. He’s just looking for an end result to what he wants. Trump is playing a game here, trying to delay it as much as possible, and trying to make it as costly as possible.”
If he can run out the clock long enough, Rozell added, a Republican-led committee might drop the investigation altogether.
“Many of us suspect this is the game being played here,” he said.
