By Joseph Lord
President Donald Trump and his legal team are setting the stage for a Supreme Court battle over executive privilege as quarrels between the former president and Democrats in the House of Representatives intensify.
The battle began following the creation of the House Jan. 6 committee, which was formed in June in a mostly party-line vote, as all but two Republicans—Reps. Adam Kinzinger (R-Ill.) and Liz Cheney (R-Wyo.)—voted against forming the commission. The committee is led almost exclusively by Democrats, with Kinzinger and Cheney the only Republicans sitting on the panel.
Trump encouraged his former staff to refuse subpoenas issued by the committee, arguing that he and his staff were protected from legislative subpoenas under the doctrine of executive privilege.
After former White House aide Steve Bannon refused to answer one such subpoena, the Jan. 6 committee recommended criminal charges for contempt of Congress, which the House later certified. After being sent to the Department of Justice (DOJ), Biden-appointed Attorney General Merrick Garland decided to accept the charge, starting criminal proceedings against Bannon.
House Democratic Caucus Co-chairman Pete Aguillar (D-Calif.) applauded the decision to advance criminal proceedings through the House, saying, “Let me be clear that this is not done to be punitive, this is done to uphold the law.”
However, despite the bold claim that the measure is intended to “uphold the law,” there is little legal precedent to go by for the brewing legal battle.
The closest controversy to come before the Supreme Court regarding executive privilege came in 1974’s United States v. Nixon.
After the revelations of the Watergate Scandal came to light, the special prosecutor requested tapes recording conversations between Nixon and his aides that took place in the Oval Office. Nixon refused, arguing that his executive privilege protected him from the judicial subpoena.
The Supreme Court ruled overwhelmingly against Nixon, arguing that “the fundamental demands of due process of law in the fair administration of justice” require that the president not be immune from subpoenas or other civil court actions.
Following the decision, Nixon reluctantly handed over the tapes.
But the Jan. 6 committee’s subpoenas do not stem from the judicial branch, casting into doubt whether the decision in U.S. v. Nixon is applicable in the current legal controversy.
While U.S. v. Nixon clarified the relationship between executive privilege and judicial subpoenas, only two federal cases have been heard on legislative subpoenas, according to research by the Congressional Research Service, and neither of those cases made it to the Supreme Court (pdf).
Historically, the Department of Justice’s de facto approach to such issues has been to hold executive privilege above legislative subpoenas.
For example, in June 2012 Republicans subpoenaed the Justice Department for documents related to Operation Fast and Furious, in which the federal government sold guns to Mexican drug cartels. Attorney General Eric Holder, head of the Justice Department, refused to turn the requested documents over to the House Committee on Oversight and Reform after President Barack Obama asserted executive privilege; Republicans in the committee quickly voted to charge Holder with contempt of Congress the same day.
After being certified by the Republican-led House, the Justice Department—led by Holder—refused to pursue a conviction, citing Obama’s claim to executive privilege.
However, with Garland’s recent decision to hold Bannon in contempt of Congress despite Trump’s assertion of executive privilege, the DOJ’s longstanding protocol regarding executive privilege has been broken.
House Minority Leader Kevin McCarthy (R-Calif.) criticized House Democrats’ decision to move ahead with the contempt charge, arguing that because there is little legal precedent to go by, the subpoenas issued by the Jan. 6 committee are “invalid” until the courts have cleared the issue up.
“They’re issuing an invalid subpoena,” McCarthy said. “Issuing an invalid subpoena weakens our power. He has the right to go to the court to see if he has executive privilege or not. I don’t know if he does or not, but neither does the committee. So they’re weakening the power of Congress itself by issuing an invalid subpoena.”
Thus far, the courts haven’t sided with Trump.
On Nov. 10, Obama-appointed District Judge Tanya Chutkan ruled against Trump’s claim to executive privilege.
Chutkan explained her decision, admitting that “executive privilege may extend beyond a president’s tenure in office,” but adding “the privilege exists to protect the executive branch, not an individual.”
“The incumbent president—not a former president—is best positioned to evaluate the long-term interests of the executive branch and to balance the benefits of disclosure against any effect on the ability of future executive branch advisors to provide full and frank advice,” she said.
In short, the claim was rejected on the grounds that Biden, as the sitting executive, hadn’t asserted executive privilege over the requested documents. But with no Supreme Court precedent to bolster this decision, it remains unclear whether this judgment is legally valid.
Trump, meanwhile, has promised continued action on this front.
“This is just a continuation of the Witch Hunt which started with the now fully debunked and discredited Russia, Russia, Russia Scam, quickly reverting to a perfect phone call with Ukraine, Ukraine, Ukraine, Impeachment Hoax #1, Impeachment Hoax #2, and now this,” Trump said of Bannon’s contempt charge. “The Unselect Committee is composed of absolute political hacks who want to destroy the Republican Party and are decimating America itself.”
“I am the only thing in their way,” Trump concluded, promising continued intervention regarding his and his former staff’s privilege over legislative subpoenas.
Given the dearth of Supreme Court precedent for this case, Trump’s legal team is likely to try and bring a claim before the conservative-leaning Supreme Court, setting the stage for a legal showdown to define the extent of executive privilege over legislative subpoenas.