Trump’s Bogus Assertion of Executive Privilege Met With Incredulity By A Federal Judge

Donald Trump’s attempt to obstruct the House Select Committee to Investigate the January 6th Attack on the U.S. Capitol, and to obstruct justice, with a bogus assertion of executive privilege was met with incredulity by a federal judge.

Law & Crime reports, Judge Skewers Donald Trump’s Argument That Jan. 6 Investigation Lacks Legislative Purpose:

A federal judge on Thursday skewered former President Donald Trump’s attempt to block the National Archives from complying with the Jan. 6 Committee to Investigate the Attack on the U.S. Capitol by claiming the subpoenas lacked a legislative purpose.

“The Jan. 6 riots happened in the Capitol,” U.S. District Judge Tanya Chutkan told Trump’s lawyer. “That is literally Congress’s house.”

Though the hearing concluded without a ruling, the judge appeared to be deeply skeptical about Trump’s assertion of executive privilege—and concerned about the scope of the requests, some of which she described as “alarmingly” and “unbelievably” broad.

“An Important Argument and a Monumental Argument”

On Oct. 18, Trump sued the Jan. 6th Committee, its chairman Rep. Bennie Thompson (D-Miss), the National Archives and Records Administration, and David Ferriero, asserting that the files sought for the investigation were privileged. The nature of the files that Trump wanted to protect emerged later.

Court filings indicate that Trump asserted executive privilege over 770 pages of documents. Those include 46 pages of records from the files of former chief of staff Mark Meadows, ex-senior adviser Stephen Miller, and ex-deputy counsel Patrick Philbin, the New York Times reported. Trump also reportedly opposed releasing the White House Daily Diary and a call log between him and then-Vice President Mike Pence concerning Jan. 6.

In his opening remarks, Trump’s lawyer Justin Clark emphasized what he characterized as the “monumental” nature of the case, which he called a “case of first impression for this court.” The case asks Judge Chutkan to determine whether a former president can assert privilegefor documents over which current President Joe Biden has waived privilege.

“It’s not just an important argument and a monumental argument,” Clark said, but it is one that will have consequences for “generations.”

“Thank you for reminding me of that,” Judge Chutkan remarked, laughing.

The judge quickly took aim at Trump’s reliance on the Supreme Court’s Mazars decision, which established that lower courts must take into account separation of powers concerns implicated by congressional subpoenas when information related to the president is implicated. Much has changed since that July 2020 decision.

Namely, Trump is no longer president.

“An Intrusion by This Branch”

Chutkan told Trump’s counsel that the Mazars case also involved subpoenas for a then-sitting president’s bank records. By contrast, the Jan. 6 Committee is seeking information about “government activity,” Chutkan noted.

“Isn’t it appropriate that Congress may not know what legislation or how much legislation is required until they complete their fact-finding process?” the judge asked.

Throughout her questioning, Chutkan displayed deep skepticism about Trump’s legal arguments, characterizing them as a request for “unprecedented” intrusion by the judicial branch into two co-equal branches of government.

“Wouldn’t that be an intrusion by this branch into the executive and legislative branch’s function?” she asked.

At one point, Judge Chutkan said that “agrees” that the Jan. 6th Committee appears to have cast a wide net in some instances.

“Some of these requests are alarmingly broad, but some of them are very specific,” she said.

The Department of Justice’s attorney Elizabeth J. Shapiro, arguing for the National Archives, offered another reason why the court should not intervene.

“Presidential communications privilege is a qualified privilege,” Shapiro said.

“These are not documents where privilege and confidentiality will survive forever,” she added. “Far from it.”

“One of the Most Important Congressional Investigations”

The House of Representatives’ lawyer Douglas Letter called the committee’s work “one of the most important congressional investigations in the history of our nation that has ever occurred.”

Interrupting, Judge Chutkan said she had no dispute with that characterization, but she added that some of the committee’s requests are “unbelievably broad,” including a subpoena of all of Trump’s communications with 40 people dating back to April 2020.

“There has to be some limit, don’t you agree?” Chutkin asked.

“Yes, your honor,” Letter agreed.

After that concession, Judge Chutkan queried: “Where is the line drawn?”

Letter argued that it is not up to Trump to make that determination. It is up to the current president: Biden. The committee also seeks polling data to locate the chronological origins of Trump’s plans to sow distrust about the election—and whom the former president targeted, Letter said.

Invoking Watergate with ex-GOP Sen. Howard Baker’s immortal question, Judge Chutkan asked whether the query was: “What did the president know, and when did he know it?”

That was “absolutely” it, Letter replied, urging the judge to rule with “dispatch” because time is of the essence.

Having made strong electoral gains earlier this week, Republicans are likely to disband the committee if they take over the House of Representatives next year. The deadline for the subpoena’s execution is Nov. 12.

A fresh round of subpoenas are going out to Trump’s allies and co-conspirators this week. House 6 January panel to issue new round of subpoenas for Trump allies:

The House select committee investigating the deadly attack on the US Capitol on 6 January is poised to issue subpoenas to top Trump lieutenants involved in attempting to subvert the 2020 election results from a “command center” at the Willard hotel in Washington, according to a source familiar with the matter.

The subpoenas, which could be issued as soon as [this] week, reflect the select committee’s interest in events at the hotel just across from the White House, where Donald Trump’s most loyal aides plotted to keep him in office.

The select committee is targeting about 20 individuals connected to the Trump command center at the Willard Hotel, among them the legal scholar John Eastman, who outlined ways to deny Joe Biden the presidency, the source said.

The subpoenas seeking documents and testimony are aimed at obtaining the legal advice offered to Trump on how he could manipulate events on 6 January to stop certification of Biden’s election win, the source said.

House investigators are moving to pursue Trump lieutenants who gathered at the Willard to uncover the “centers of gravity” from which Trump and his advisers conspired, the source said – and whether the former president had advance knowledge of the Capitol attack.

The select committee appears to be seeking a full account of what transpired in several suites at the Willard in the days leading up to 6 January and during a final “war room” meeting the night before the Capitol attack.

The select committee is targeting Eastman after it emerged that he outlined scenarios for overturning the election in a memorandum presented at a White House meeting on 4 January with Trump, former vice-president Mike Pence and Trump’s chief of staff, Mark Meadows.

At that meeting, according to a source close to Trump, Eastman ran through the memo that detailed how at the joint session of Congress on 6 January Pence might refuse to certify electoral slates for Biden and thereby hand Trump a second term.

The former president seized on Eastman’s memo and relentlessly pressured Pence in the following days to use it to in effect commandeer the largely ceremonial electoral counting process, the Trump source said.

Trump was not successful in convincing Pence to reject Biden’s election win – an outcome top Trump aides blamed on the then vice-president’s chief of staff, Marc Short, the Trump source said – and Congress certified Biden as president after the Capitol attack.

Eastman has [tried to] distance himself from the memo, telling the Guardian the scenarios he outlined were not intended as advice. He also told the National Review he wrote the memo at the request of “somebody in the legal team” who he could not recall.

But Eastman appears to be a witness of importance, given he regularly attended meetings at the Willard with Giuliani and former Trump chief strategist Steve Bannon, acting effectively as a liaison with the White House, the Trump source said.

Eastman undermined his attempts to distance himself from the memo last week after he told the activist reporter Lauren Windsor that Pence declined to overturn the election, even though he had provided the legal reasoning, because “Pence is an establishment guy at the end of the day”.

The select committee is also considering a subpoena for Giuliani, the source said, since the former New York mayor and Trump lawyer led the legal effort from the Willard that involved trying to find and publicize allegations of electoral fraud.

Giuliani pressured state legislatures to challenge Biden victories and, even as the Capitol attack unfolded, cajoled Republican members of Congress to object to states’ electoral college votes, the Trump source said.

A spokesperson for the House select committee declined to comment about the targets or scope of forthcoming subpoenas. Neither Eastman nor a lawyer for Giuliani immediately responded to requests for comment.

The new line of inquiry centered on the Willard comes after the chairman of the select committee, Bennie Thompson, last week told reporters that he intended to subpoena Eastman, before later revealing that he had signed about 20 subpoenas.

Thompson said on Friday that he had hoped to issue the subpoenas to Eastman and other Trump lieutenants, but the timeline slipped as Democrats became consumed with crisis talks before the House passed Biden’s $1tn infrastructure package shortly before midnight.

The select committee remains in the evidence-gathering phase of its inquiry and has conducted interviews and depositions with more than 150 witnesses, according to the vice-chair of the panel, Liz Cheney.

“It is a range of engagements – some formal interviews, some depositions,” the Wyoming Republican said. “There really is a huge amount of work under way that is leading to real progress for us.”

Several former Trump officials, including Bannon, have resisted subpoenas. A former justice department official, Jeffrey Clark, on Friday refused to answer questions at a deposition, citing attorney-client privilege.

In a statement, Thompson raised the possibility of holding Clark in contempt of Congress. “Mr Clark’s complete failure to cooperate today is unacceptable,” he said. “We are willing to take strong measures to hold him accountable to meet his obligation.”