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Trump's 'Executive Privilege' Is Another Big Lie

Joe Conason on

When Donald Trump was president he informed us, with his usual combination of ignorance and belligerence, that the Constitution gave him "the right to do whatever I want." And he acted as if that lie were true, committing crimes that led to his impeachment not once but twice.

Now Trump insists that even though he is no longer president, the Constitution allows him to conceal evidence of crimes perpetrated by him and his mangy entourage -- specifically, the documents and testimony demanded by the House Select Committee on the January 6 Attack. He has "ordered" all his aides, including former White House strategist and campaign manager Steve Bannon, to defy the committee's subpoenas. His lawyers are in federal court this week with a lawsuit claiming that "executive privilege" should protect him from coughing up all the information sought by the committee.

That claim deserves to be dismissed outright by Judge Tanya Chutkan, who is hearing the case -- and what we have learned in recent days about Trump's coup plotting only underlines its lack of substance.

As a doctrine, "executive privilege" is meant to shield presidential deliberations and papers from undue exposure that would hinder the functioning of the executive branch. It is a vague standard that has been subject to repeated abuse by presidents who want to conceal embarrassing facts and, most infamously, served as Richard Nixon's final line of defense against the Watergate investigation.

In United States v. Nixon, the Supreme Court handed down an historic ruling on July 24, 1974, rejecting the executive privilege argument, forcing the surrender of White House tapes and other incriminating materials -- and resulting, just over two weeks later, in Nixon's resignation in disgrace. The high court's unanimous decision meant that no person, not even a president, is above the law -- and that in the absence of a compelling military or diplomatic need for secrecy, no president could assert an absolute right to confidentiality.

Flash forward to this perilous moment, as Congress investigates the attempt last January to mount a violent coup against the certification of Trump's duly elected opponent, Joe Biden. Even as more and more evidence emerges of a desperate scheme against the nation, Trump's lawyers pretend that the machinations of the coup plotters should remain exempt from Congressional scrutiny. Their arguments have mocked the Jan. 6 probe as an "invasive Congressional fishing expedition" and warned that upholding the committee subpoenas "would harm the institution of the presidency."

Actually, nobody has done more harm to the presidency than Trump himself, but that's a separate point.

First, Trump isn't president anymore, so he no longer enjoys whatever privilege may attach to that office. President Joe Biden already has rejected Trump's pleas and ordered the release of any relevant documents under the control of the National Archive or other government agencies.

 

Second, the plotters were led by a motley assortment of private citizens, not White House officials, including Bannon, Rudy Giuliani and convicted felon and former police commissioner Bernard Kerik, Giuliani's sidekick. During the crucial days leading up to Jan. 6, this gang operated from suites in the capital's plush Willard Hotel, not the White House itself -- and their enormous expenses were paid by the Trump campaign, not the government.

Finally, and most importantly, whatever degree of executive privilege may be construed from Article II of the Constitution cannot be used to protect presidential crimes. That was the essence of the Supreme Court decision that made Nixon turn over his smoking tapes to a special prosecutor -- and it applies with equal force at least to Trump's seditious conspiracy against the democratic process and the peaceful transfer of power.

Judge Chutkan has indicated she may impose minor limitations on the select committee's subpoenas. But she mocked the Trump lawyer's absurd suggestion that Congress has no legitimate purpose in probing the events that led to an insurrectionary attack on the Capitol. Whatever minor limits she may impose on the select committee's subpoenas won't matter much, so long as she acts swiftly.

In short order this case will appear on the docket of the Supreme Court, where the justices will then have an opportunity to prove that they are authentically nonpartisan and unbiased, as they have recently tried to persuade us. If they fail, history will scorch their reputations beyond repair.

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