Trump claimed that the August request of the committee was “almost unlimited in scope” and requested many records that were not related to the siege. According to papers filed in federal court in District of Columbia, Trump called it an “illegal fishing expedition”, which was “untethered” from any legitimate legislative purpose.
Trump’s lawsuit was not unexpected. He had previously stated that he would challenge the investigation. At least one of his ally, Steve Bannon has also defied a subpoena. The legal challenge went far beyond the initial 125 pages that Biden had recently approved for release to the committee. The suit names both the National Archives and the committee. It seeks to invalidate the entire congressional request. The suit seeks a court injunction that prohibits the archivist from releasing the documents.
Late Monday night, chairman Bennie Thompson (D-Miss.) and Republican Rep. Liz Cheney (Wyoming), made a joint statement stating that they would challenge the lawsuit. They stated that it is “nothing but an attempt to delay or obstruct the investigation”.
Thompson and Cheney stated that the White House has a long history accommodating congressional inquiries when the public interest is greater than other concerns. “It’s difficult to imagine a more compelling public benefit than seeking answers about an attack against our democracy or an attempt to reverse the results of an electoral election.”
In clearing documents for release, the Biden administration stated that the nine-month-old violent siege on the Capitol was so extraordinary that it warranted the waiver of privileges that normally protect White House communications.
Trump’s lawsuit was filed just hours before the panel votes to recommend that Bannon is held in criminal contempt for defying the committee’s requests for documents and testimony. The committee released Monday’s resolution stating that Bannon, a former Trump aide, and podcast host, has no legal standing in order to reject the committee. Trump’s lawyer asked him to not disclose any information. The committee stated that Bannon was a private citizen at the time he spoke with Trump before the attack and that Trump has not made any executive privilege claims to this panel.
According to the resolution, there were many ways that Bannon was involved in the insurrection’s lead-up, including his encouragement to Trump to concentrate on Jan. 6, when Congress approved the presidential election, and his remarks on Jan. 5, that “all hell will break loose” the following day.
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After the committee votes on Bannon’s contempt resolution, it will be sent to the full House for a vote, and then to the Justice Department which would decide whether or not to prosecute.
The White House attempted to undermine Bannon’s argument in a letter obtained from The Associated Press. Jonathan Su, Deputy Counsel, wrote that Bannon was also affected by the president’s decision regarding the documents. “At this point, we don’t know of any basis for your client refusing to appear for deposition.”
Su wrote to Bannon’s lawyer, “President Biden’s determination regarding privilege not justified with regard to these subjects applies to your clients deposition testimony as well as any documents your client may have concerning either subject.”
Bannon’s lawyer said that he hadn’t yet seen the letter, and couldn’t comment on it. Bannon said that he requires a court order to comply with his subpoena. However, Kashyap Patel, the former White House Chief Of Staff and White House Pentagon aide Kashyap Patel have been in negotiations with the committee. It is not clear if Dan Scavino (another former White House aide) will comply.
The committee also subpoenaed over a dozen people involved in planning Trump rallies before the siege. Some of these individuals have already indicated that they will turn over documents and testify.
The documents and testimony are needed by lawmakers as part of an investigation into the attack on the Capitol Building by Trump supporters Jan. 6. This was a violent attempt to stop the certification of Biden’s election win. The committee requested a wide range of executive branch papers relating to intelligence gathered prior to the attack, security prepared during and before the siege and the pro-Trump rallies that day, as well as Trump’s false claims about winning the election.
Trump’s lawsuit claims that the “boundless requests” included more than fifty requests for documents and information. It also mentioned more then thirty people, both inside and outside of government.
According to the lawsuit, the files should be withheld as they could contain “conversations (or about) foreign leaders”, attorney work product, sensitive national security secrets, and any other privileged communications between a pool of potential hundreds of people.”
This suit also challenges the legality and constitutionality of the Presidential Records Act. It argues that the Presidential Records Act allowing an incumbent president, to waive executive privilege of their predecessors just months after they have left office is fundamentally unconstitutional. Biden stated that he would review each request individually to determine if the privilege should be waived.
Executive privilege, although not explicitly stated in the Constitution is designed to allow a president to seek candid counsel from his advisors without fear of immediate disclosure. It also protects his confidential communications regarding official responsibilities.
However, this privilege has been limited in exceptional situations. This was evident during the Watergate scandal. The Supreme Court ruled that it couldn’t be used to protect the release of secret Oval Office tapes in criminal investigations and after the September 11 terrorist attacks.
Jesse Binnall filed Monday’s lawsuit. Binnall is an Alexandria-based attorney who represented Trump in a failed lawsuit last year to reverse Biden’s win in Nevada. Trump and his associates continue to make unsubstantiated claims about voter fraud in 2020.
Trump’s suit cites from the 2020 U.S. Supreme Court ruling in a case brought by House committees to obtain the tax returns and financial records of the president at the time. However, that case involved courts applying a congressional subpoena. In that case, the high court directed lower courts to apply a balance test to determine whether or not to turn over records. It’s still pending.
Mike Gwin, White House spokesperson, stated that “as President Biden determined,” executive privilege’s constitutional protections should not be used as a shield for information that clearly and apparent attempts to subvert the Constitution.
