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How the Trump-Biden executive privilege showdown could backfire

Trump isn’t afraid to file a lawsuit, even one he could lose. But his lawyers would be wise to advise against it this time.

Last week, former President Donald Trump said he will “defend executive privilege” in an attempt to withhold documents from the House committee investigating the Jan. 6 insurrection. Also last week, President Joe Biden rejected Trump’s claim that privilege should apply and authorized the White House records housed at the National Archives to be released to Congress. This suggests we may be heading to the courts.

The committee is clearly trying to understand what role Trump and his inner circle played in the violence.

Executive privilege refers to the power of the president and other executive branch officials to withhold certain forms of communication. Trump has threatened to “exert” executive privilege, which presumably means that he’ll file a lawsuit claiming he, not Biden, should decide whether the documents should be released. Such a lawsuit would certainly fail. Interestingly, it could also backfire by triggering a court finding that there is reason to believe the documents that the committee is seeking from the archives include evidence of criminal wrongdoing.

On Aug. 25, the House select committee issued a demand for documents from the National Archives and Records Administration and seven other executive branch agencies related to Jan. 6. The committee is clearly trying to understand what role Trump and his inner circle played in the violence, either by directly inciting the rioters or by creating a disinformation ecosystem that enabled the riot.

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Trump is trying to claim that he has final authority over whether those documents can be released. But a statute Congress passed in 2014 specifically gives the final say over executive privilege (at least in the executive branch) to the incumbent president. Trump, while president, had the opportunity to try to shift the power to former presidents but made no such attempt. (Not that Trump worries about making inconsistent arguments, but while he was president he also continually argued in favor of the so-called unitary executive theory, which states that the president has complete control over the executive branch. That, now, would be Biden.)

To prevent Congress from getting the documents, Trump would have to file a lawsuit claiming the law giving Biden ultimate authority is unconstitutional. His best argument rests on language in one of the Nixon cases: The Supreme Court stated that “a former President may also be heard to assert” executive privilege. At the same time, the Supreme Court recognized that the incumbent is in the “best position to assess the present and future needs of the Executive Branch.” Constitutional scholar Jonathan Shaub is of the opinion that the Supreme Court “does appear to recognize a superior right in the incumbent president to assert privilege.”

Even if Trump managed to persuade a court that a former president, not the current president, should make decisions like whether the executive privilege applies, he would still face an uphill battle. The privilege is not absolute. Courts have held that executive privilege must yield when there is a “showing of need.” Therefore the select committee needs to establish only that it has a need for the documents and it should get them. The stated aim of the committee is to investigate the Jan. 6 attack and prevent future attacks. This surely meets the standard of “need.”

Trump, of course, is not afraid to file a lawsuit, even one he could lose, if he thinks he would benefit — either from using the courts as a stalling tactic or in the hope of muddying the waters. Reps. Bennie Thompson, D-Miss., and Liz Cheney, R-Wyo., the chair and vice chair of the select committee, respectively, denounced any attempt to “defy” lawful subpoenas and “run out the clock,” presumably until after 2022, when Republicans may again control the House. Finding ways to defy lawful subpoenas, after all, was Trump’s tactic when he was faced with both the Mueller investigation and his impeachments.

Trump, of course, isn’t afraid to file a lawsuit, even one he could lose, if he thinks he will benefit.

But should Trump file a lawsuit and attempt to defy this particular subpoena, he would then need to worry about the crime-fraud exception, which states, quite sensibly, that a privilege cannot be used to conceal illegal behavior. The Biden administration has already indicated that it will seek to invoke the exception. In rejecting Trump’s claims of executive privilege, the White House counsel wrote, “The constitutional protections of executive privilege should not be used to shield, from Congress or the public, information that reflects a clear and apparent effort to subvert the Constitution itself.”

We do not have case law on whether the crime-fraud exception applies to executive privilege specifically, but if the Biden administration raises the issue, the court will need to address it. And it makes sense to apply the crime-fraud exception to executive privilege: Allowing executive privilege to cover up crimes committed by the executive would (obviously) empower and encourage lawlessness and Constitution-bashing behavior from the chief executive, who swore to defend the Constitution.

Moreover, while courts have not previously applied the exception to executive privilege, they have previously implied that they would. The U.S. Circuit Court of Appeals for Washington, D.C., for example, held that the deliberative process privilege (one component of executive privilege) “disappears altogether when there is any reason to believe government misconduct occurred.” The same court also noted: “It is true, of course, that the Executive cannot, any more than other branches of government, invoke a general confidentiality privilege to shield its officials and employees by the proper government institutions into possible criminal wrongdoing.” Moreover, executive privilege only covers communications “in performance of [a president’s] responsibilities” of office, and a president’s responsibilities and duties of office cannot include attempts to “subvert the constitution.”

We can expect the question of the crime-fraud exception to unfold procedurally the way it does with attorney-client communications: After Trump files his lawsuit, Biden or perhaps the Justice Department would file a motion asking the court to consider whether the crime-fraud exception applies to the material. The motion, of course, would include evidence supporting the claim that the documents include evidence of wrongdoing.

Given what we already know, it is a good bet that the material sought by the committee contains some evidence of wrongdoing. For example, if documents the House has subpoenaed show that Trump or any members of his inner circle intended to delay or hinder counting of the electoral votes on Jan. 6, they would be in violation of 18 U.S.C. 1505. And we already know that Trump and his inner circle discussed how to delay the counting of the electoral votes. See the Eastman memo, which outlined a plan and a legal rationale for overturning the results of the election. Last week, the Senate Judiciary Committee released a report concluding, “In attempting to enlist DOJ for personal, political purposes in an effort to maintain his hold on the White House, Trump ... arguably violated the Hatch Act.”

Trump may very well still try to use lawsuits to run out the clock on these congressional document requests. This strategy likely would not prevent Congress from getting the documents. But it could force a court to rule that there is reason to believe the documents in question include evidence of wrongdoing — a legal lose-lose scenario that any lawyer worth his retainer would be wise to recommend against.