Trump’s Coup D’Etat Co-Conspirators Subpoenaed To Testify Before Congress About January 6 Insurrection

The Washington Post reported, Biden White House leans toward releasing information about Trump and Jan. 6 attack, setting off legal and political showdown:

The White House is leaning toward releasing information to Congress about what Donald Trump and his aides were doing during the Jan. 6 attack on the U.S. Capitol despite the former president’s objections — a decision that could have significant political and legal ramifications.

Trump has said he will cite “executive privilege” to block information requests from the House select committee investigating the events of that day, banking on a legal theory that has successfully allowed presidents and their aides to avoid or delay congressional scrutiny for decades, including during the Trump administration.

Sorry, Washington Post. Donald Trump is an ex-president. Geezus! The U.S. Supreme Court explained executive privilege in NIXON v. ADMINISTRATOR OF GENERAL SERVICES (excerpt):

We start with what was established in United States v. Nixon, supra — that the privilege is a qualified one. [T]he Court [held] that “neither the doctrine of separation of powers, nor the need for confidentiality of high-level communications, without more, can sustain an absolute, unqualified Presidential privilege . . . .”

Unlike United States v. Nixon, in which appellant asserted a claim of absolute Presidential privilege against inquiry by the coordinate Judicial Branch, this case initially involves appellant’s assertion of a privilege against the very Executive Branch in whose name the privilege is invoked. The nonfederal appellees rely on this apparent anomaly to contend that only an incumbent President can assert the privilege of the Presidency. Acceptance of that proposition would, of course, end this inquiry. The contention draws on United States v. Reynolds, 345 U. S. 1, 7-8 (1953), where it was said that the privilege “belongs to the Government and must be asserted by it: it can neither be claimed nor waived by a private party.” The District Court believed that this statement was strong support for the contention, but found resolution of the issue unnecessary. 408 F. Supp., at 343-345. It sufficed, said the District Court, that the privilege, if available to a former President, was at least one that “carries much less weight than a claim asserted by the incumbent himself.” Id., at 345.

It is true that only the incumbent is charged with performance of the executive duty under the Constitution. And an incumbent may be inhibited in disclosing confidences of a predecessor when he believes that the effect may be to discourage candid presentation of views by his contemporary advisers. Moreover, to the extent that the privilege serves as a shield for executive officials against burdensome requests for information which might interfere with the proper performance of their duties [citations omitted], a former President is in less need of it than an incumbent. In addition, there are obvious political checks against an incumbent’s abuse of the privilege [e.g., impeachment, now dead letter law in the Constitution].

Nevertheless, we think that the Solicitor General states the sounder view, and we adopt it:

“This Court held in United States v. Nixon . . . that the privilege is necessary to provide the confidentiality required for the President’s conduct of office. Unless he can give his advisers some assurance of confidentiality, a President could not expect to receive the full and frank submissions of facts and opinions upon which effective discharge of his duties depends. The confidentiality necessary to this exchange 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.”

[It] must be presumed that the incumbent President is vitally concerned with and in the best position to assess the present and future needs of the Executive Branch, and to support invocation of the privilege accordingly.The appellant[ ex-president Nixon] may legitimately assert the Presidential privilege, of course, only as to those materials whose contents fall within the scope of the privilege recognized in United States v. Nixon, supra. In that case the Court held that the privilege is limited to communications “in performance of [a President’s] responsibilities,” 418 U. S., at 711, “of his office,” id., at 713, and made “in the process of shaping policies and making decisions,” id., at 708.

First, the executive privilege is qualified and limited. It only applies to communications in the performance of a president’s responsibilities of his office, and made “in the process of shaping policies and making decisions.”

It should go without saying that this does not apply to a criminal conspiracy to engage in a coup d’etat against the U.S. government. A president cannot shield his heinous criminal activity for sedition, insurrection and treason against the U.S. government by the assertion of executive privilege. The crime-fraud exception to executive privilege eviscerates the privilege. Ryan Goodman and Andrew Weissmann explain:

There is [a] threshold issue: if the proposed testimony involves evidence of criminal activity (more commonly understood as the “crime-fraud” exception in the context of attorney-client privilege). As former State Department Legal Adviser Harold Koh and his coauthors explained in a thorough analysis of executive privilege and its exceptions, “government officials cannot use constitutional privileges to hide evidence of crimes” (citing United States v. Nixon, United States v. Myers, Comm. on Judiciary, In Re Sealed Case).

[In] short, there’s a legal buzzsaw that would await the [ex-president] in asserting a claim of executive privilege as it would open the door to a judge finding that the crime fraud exception applies.

Second, “[It] must be presumed that the incumbent President is vitally concerned with and in the best position to assess the present and future needs of the Executive Branch, and to support invocation of the privilege accordingly.” That incumbent president is Joe Biden.

On this point, the Washington Post reports, Biden probably will release information about Trump’s Jan. 6 activities, White House says:

President Biden does not plan to invoke executive privilege to block information Congress is seeking about former president Donald Trump or his aides regarding the Jan. 6 attack on the Capitol, the White House said Friday, a move that could provide answers to some of the remaining questions surrounding the insurrection.

Biden … plans to share that information with Congress if asked, White House press secretary Jen Psaki told reporters Friday.

“The president has already concluded that it would not be appropriate to assert executive privilege,” Psaki said. “And so we will respond promptly to these questions as they arise and certainly as they come up from Congress.”

She added the White House has already been working closely with congressional committees and others “as they work to get to the bottom of what happened on January 6th, an incredibly dark day in our democracy.”

Psaki also noted that no one from Trump’s team has reached out to the Biden administration to formally request that Biden use executive privilege to block information requests from the Jan. 6 select committee.

[M]embers of the investigative committee argue that Trump no longer enjoys the protection of executive privilege, encouraging the White House to push aside institutional concerns about sharing information with Congress and aid the panel in an investigation focused on what Democrats and a handful of Republicans have called an assault on democracy.

[On] Friday, Psaki said Biden would lean toward disclosing information but stopped short of saying it was a blanket policy.

“It’s an eye to not asserting executive privilege. And obviously, some of this is predicting what we don’t know yet, but that is certainly his overarching view,” she said.

Asked whether there was something that they would not turn over to Congress, Psaki said she did not want to “get ahead of a hypothetical.”

“What’s important for people to know and understand is that’s the principle through which we’re approaching this,” she said.

In response to the House panel’s request, the National Archives has already identified hundreds of pages of documents from the Trump White House relevant to its inquiry. As required by statute, the material is being turned over to the Biden White House and to Trump’s attorneys for review.

The committee’s Aug. 25 letter to the National Archives was sweeping and detailed, asking for “all documents and communications within the White House on January 6, 2021, relating in any way” to the events of that day. They include examining whether the White House or Trump allies worked to delay or halt the counting of electoral votes and whether there was discussion of impeding the peaceful transfer of power.

The letter asked for call logs, schedules and meetings for a large group, including Trump’s adult children, Trump son-in-law and senior adviser Jared Kushner and first lady Melania Trump, as well as a host of aides and advisers, such as his attorney Rudolph W. Giuliani.

The committee has focused, in part, on seeking information about whether the Trump White House and members of Congress played any role in encouraging the demonstrations, which interrupted the constitutionally mandated confirmation of electoral votes and unleashed a series of violent confrontations with the U.S. Capitol Police.

Thursday, the House Select Committee to Investigate the January 6th Attack on the U.S. Capitol issued the first witness subpoenas, with an accelerated timeline for testimony. House Jan. 6 committee issues subpoenas for Trump aides and advisers, including Meadows and Scavino:

The House select committee investigating the Jan. 6 attack on the Capitol has issued subpoenas to two top Trump White House officials, former chief of staff Mark Meadows and former deputy chief of staff Dan Scavino, as well as to Kash Patel, who was serving as chief of staff to the acting defense secretary that day. An additional subpoena targets longtime Trump adviser Stephen K. Bannon.

The subpoenas were announced Thursday evening by the committee, which has moved its inquiry into a new, more aggressive stage after requesting White House records last month and sending preservation requests for records to telecom and social media companies.

Along with asking Meadows, Scavino, Patel and Bannon to hand over records, the committee is instructing the four men to appear for depositions in mid-October.

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[Trump’s] executive privilege questions will be especially focused on Meadows and Scavino because of their roles in the White House and access to Trump before, during and after the Jan 6 insurrection.

On the day of the insurrection, Meadows and Scavino were firsthand witnesses to the president’s state of mind and hopes for his speech on the Ellipse, where he urged thousands of protesters to go up Pennsylvania Avenue to the Capitol and to “fight like hell” for their country. After violence broke out at the Capitol and police shot a rioter, Meadows, working with Scavino and with help from Trump’s daughter Ivanka Trump, repeatedly tried to get Trump to issue a public message to tell his supporters to stop their protest and leave the Capitol grounds. These details were first reported in the book “I Alone Can Fix It” by Washington Post reporters Carol Leonnig and Philip Rucker.

Thompson also notes that Justice Department documents reveal that Meadows “directly communicated with the highest officials at the Department of Justice requesting investigations into election fraud matters in several states” and made contact with “several state officials to encourage investigation of allegations of election fraud.”

Thompson wrote to Scavino that “it appears you were with or in the vicinity of former president Trump on January 6 and are a witness to his activities that day. You may also have material relevant to his video taping and tweeting messages on Jan 6.” The letter cites reports in a new book, “Peril,” by Washington Post writers Bob Woodward and Robert Costa, that Scavino was also with Trump on Jan. 5 “when he and others were considering how to convince Members of Congress not to certify the election for Joe Biden.”

In its letter to Bannon, the select committee writes that the longtime activist and adviser has “information relevant to understanding important activities that led to and informed the events at the Capitol” on Jan. 6.

“For example, you have been identified as present at the Willard Hotel on January 5, 2021, during an effort to persuade Members of Congress to block the certification of the election the next day, and in relation to other activities on January 6,” Thompson writes. “You are also described as communicating with then-President Trump on December 30, 2020, and potentially other occasions, urging him to plan for and focus his efforts on January 6.”

Patel, a former aide to Rep. Devin Nunes (R-Calif.), worked in White House national security positions under Trump before transferring to the Pentagon. When the panel requested documents from the Pentagon in August, it mentioned Patel specifically. The committee requested “documents and communications concerning possible attempts by President Donald Trump to remain in office after January 20, 2021.” The panel also asked for communications about martial law.

On Thursday, the committee subpoenaed Patel for “all documents and communications to, from, or referring to Patel, relating to civil unrest, violence, or attacks at the U.S. Capitol; challenging, overturning, or questioning the validity of the 2020 election results; or the counting of the electoral college vote on January 6, 2021.”

The House Select Committee is just getting started. More Trump associates to get Jan. 6 committee subpoenas, Adam Schiff vows: “No one is off the table”.

“Do you anticipate one or more of these men saying, I can’t testify, I have immunity?” asked Cuomo.

“If past is prologue, we can certainly anticipate that some may seek to thwart our investigation, and certainly the former president has been talking along those lines, and if you look at all of the obstruction and all of the stonewalling of the subpoenas by some of these same people in the prior administration … we experienced that kind of stonewalling before,” said Schiff. “But unlike the last four years, these witnesses are not going to be able to count on the former president to protect them if they essentially thwart the law, and I would hope that we can move expeditiously to enforce the subpoenas. If that’s necessary, I hope it won’t be, but if it is, but also that the Justice Department would be open to considering potential criminal contempt charges against anyone who ignores the law.”

The Committee also needs to subpoena Republican congressional co-conspirators, e.g., “Traitor” Kevin McCarthy, Paul Gosar, Andy Biggs, Mo Brooks, Ted Cruz and Josh Hawley, just for starters.

Rolling Stone reports, The Bannon Subpoena Is Just the Beginning. Congress’s Jan. 6 Investigation Is Going Big:

The House select committee investigating the January 6th attack fired a massive shot into the heart of former President Trump’s inner circle Thursday night, and the four subpoenas sent to former White House officials are likely just the beginning. A review of committee documents, including some obtained exclusively by Rolling Stone, makes clear the House select committee is looking broadly at Trump’s inner circle. The documents also reveal the congressional investigation is going beyond the people who stormed the Capitol on January 6th to examine the role Trump’s top allies played in encouraging the insurrection and their broader efforts to overturn the results of the 2020 presidential election.

[T]his focus on higher-profile figures, as well as the months of efforts by Trump allies to undo his election loss to President Joe Biden, is a stark contrast to the approach taken so far by the FBI. That probe — the largest in the bureau’s history — has, thus far, largely focused on Trump supporters who actually broke into the building, and charges have been filed against more than 600 people.

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While no members of Congress were individually named in the committee’s request to NARA, the committee did ask for documents and communications from within the White House with Tom Van Flein, the chief of staff to Rep. Paul Gosar (R-Ariz.). Alexander, the “Wild Protest” organizer, has claimed that Gosar was one of three Republican House members who helped him plan the event. Van Flein and Alexander also participated in chats together on the audio app Clubhouse earlier this year. Gosar has been one of the most outspoken defenders of the Trump supporters who stormed the Capitol on January 6th.

There is much more in this detailed reporting.