January 6 Committee should challenge defiant Trump officials in court

Former President Trump’s advisers are defying subpoenas from the House January 6 Committee, calculating that they can run the clock out until Republicans retake the House in 2022 and, presumably, put the committee out of business. They shouldn’t get away with it. 

Regardless of what one thinks of the Democratic messaging about the Capitol riot — I think it is demagogic — it is obviously proper for Congress to investigate an attack on Congress itself, particularly one intended to obstruct a constitutionally-mandated proceeding to count state electoral votes. By law and logic, the committee is within its rights to probe President Trump’s actions before, during and after the uprising. 

The committee should ask the federal courts to reject the claim that the former president’s purported assertion of executive privilege permits his advisers to defy committee subpoenas. 

To be clear, I have always opposed the notion that Congress should rely on courts to press its demands for information from the executive branch. And I believe it is absurd for a former president to claim executive privilege, as if he were the president in power. 

But of course, it doesn’t matter what I think. The blunt fact is that the Supreme Court has said that former presidents retain the constitutional authority to assert executive privilege regarding communications with aides that occurred during their presidencies. 

The committee can vent its spleen from now until the end of time about how contemptuous and potentially criminal it is for former Justice Department official Jeffrey Clark and former presidential adviser Steve Bannon to flout its subpoenas — refusing to testify and surrender documents. But the recalcitrant witnesses are relying on Supreme Court precedent.  

The decision in question, Nixon v. Administrator of General Services, is terrible. But you can’t blame the witnesses for relying on it. For present purposes, and for the future, the committee should ask the Supreme Court to renounce it. 

Authored by Justice William Brennan in 1977, the decision is a product of its judicially freewheeling time, when the court often made it up as it went along. In that spirit, the majority stated:

“The confidentiality necessary to this exchange [of information between a president and his advisers] cannot be measured by the few months or years between the submission of the information and the end of the President’s tenure; the privilege is not for the benefit of the President as an individual, but for the benefit of the Republic. Therefore the privilege survives the individual President’s tenure.”

To be sure, the court stressed that executive privilege is not absolute and must be weighed against other governmental imperatives. This echoed its then-recent ruling in United States v. Nixon (1974), in which the information claimed to be privileged was (a) clearly needed for criminal proceedings in court and (b) did not implicate military, diplomatic or sensitive national security secrets. 

Even more significantly for present purposes, Justice Brennan conceded that “a former president is less in need of [the privilege] than an incumbent.” Moreover, the court found it problematic that the congressional checks against an incumbent’s abusive assertion of privilege would often be ineffective against a former president. And then there was the most important consideration: a former president’s claim that confidentiality was necessary would be undercut markedly if the incumbent president did not support the claim. 

Still, the court concluded that former presidents retain some quantum of executive privilege. The extent of confidentiality could not be defined with exactitude; it would depend on the circumstances — how important the proceeding in which information was demanded, and how closely connected to core presidential responsibilities were the communications at issue. But all that said, the court found that a former president’s claim of executive privilege was rooted in constitutional separation of powers. Ergo, it could not be extinguished, even by a congressional statute. 

This was ill-conceived. A former president does not have power over the executive branch or any part of the government. Executive privilege belongs to the incumbent chief executive. The notion that it is retained by a former official defies the Constitution’s endowment of all executive power in the sitting president — the theory of the “unitary executive” endorsed by constitutional conservatives (including yours truly).

Ironically, the claim that former presidents retain executive privilege also defies the Constitution’s strict separation of powers as construed in federal jurisprudence. Let’s say President Trump were to win a seat in Congress. It is not permissible for a single official simultaneously to wield executive and legislative power. A House Speaker Trump could not conceivably assert executive privilege. How, then, could a private citizen Trump do so? 

Donald Trump is not divested of executive power because he has some other government power. He is divested because he has no government power.

Historically, particularly before Watergate, presidential materials were deemed to be the property of the former president, rather than the government. That’s why we have privately endowed libraries housing the papers of former presidents. And that’s fine. But a property right is not a government privilege. 

Former President Trump rightly can be deemed the presumptive owner of his presidential papers — at least to the extent they are not covered by modern government record-keeping laws. But he should not have a government-rooted privilege against their disclosure. Like any other property owner, he should be vulnerable to subpoena (and, of course, have all the defenses private parties have against government information demands that are illegal or overly broad). The January 6 Committee should ask the courts, and ultimately the Supreme Court, to say as much.

On that score, for over two centuries, the political branches wisely resolved their disputes without resorting to the courts. The Framers gave them plenty of means to do that. Nevertheless, last year, in Trump v. Mazars, the Supreme Court encouraged Congress to press its information demands in judicial proceedings. This was foolish, but it is now the law.

Former President Trump’s assertion of executive privilege is specious. Even more baseless are the claims of Clark and Bannon that Trump’s supposed privilege excuses them from complying with congressional subpoenas. Since the Supreme Court has rolled out the red carpet, the committee should press its subpoenas in court. Ultimately — hopefully, on an expedited track given the importance of the inquiry — the justices should rule that former presidents have no right to assert executive privilege.

Former federal prosecutor Andrew C. McCarthy is a senior fellow at National Review Institute, a contributing editor at National Review, a Fox News contributor and the author of several books, including “Willful Blindness: A Memoir of the Jihad.” Follow him on Twitter @AndrewCMcCarthy.