Comment: Trump’s claims of privilege don’t pass ‘giggle test’

He can’t claim executive privilege because he’s no longer the executive. The intent of the law is clear.

By Teri Kanefield / Special To The Washington Post

On Aug. 24, the House select committee to investigate the Jan. 6 attack on the U.S. Capitol issued a request for documents, including presidential documents housed at the National Archives. President Biden declined to assert executive privilege and authorized the Archives to release the records to Congress.

The Presidential Records Act of 1978 (PRA) as modified in 2014 gives the sitting president final authority over whether to assert executive privilege over presidential documents. A former president can be heard, but under the PRA, the sitting president decides.

And yet on Monday, former president Donald Trump filed a lawsuit to prevent the select committee from accessing these documents, claiming that the committee “has decided to harass President Trump” with a “vexatious, illegal fishing expedition” and “impulsive egregious action against a former President and his close advisors.”

Trump never actually argued that he as former president — rather than Biden as the sitting president — should have the final say over these documents. Instead, he argued absurdly that the select committee’s request doesn’t meet the standard the Supreme Court laid out in Trump v. Mazars governing requests for the nonprivileged personal records of a sitting president; even though requested records are not personal and even though Trump is not the sitting president.

Under the Mazars standard, a subpoena for a president’s personal records must meet four elements. First, to minimize “confrontation between the branches of government,” the legislative purpose must warrant the intrusive step of demanding a president’s personal records. Second, to narrow the scope of possible conflict between the branches, courts should insist on a subpoena no broader than reasonably necessary to support Congress’s legislative objective. This “serves as an important safeguard against unnecessary intrusion into the operation of the Office of the President.” Third, the subpoena must advance a valid legislative purpose. Finally, courts should assess the burdens imposed on the president by a subpoena, particularly because they stem from a rival political branch.

Trump argued that the select committee subpoena should be invalidated based on the Mazars tests. He claimed that the subpoena was “unbelievably burdensome” and would take him too long to “conduct an adequate review” of the documents, even though the “burdensome” element was intended to prevent a sitting president from being overly burdened by rival branch of government. Trump himself quoted case law making clear that the intent was to protect a sitting president, which he is not: “Courts should assess the burdens imposed on the President by a subpoena, particularly because they stem from a rival political branch that has an ongoing relationship with the President and incentives to use subpoenas for institutional advantage.” And courts should “modify or dissolve the orders when, by virtue of their overbreadth, enforcement might interfere with the officials in the discharge of their duties.”

The flaw in this argument is obvious: Trump is no longer president. He no longer has “official” duties to discharge, and Congress is no longer a “rival branch of government.”

After applying the test for personal records, Trump then goes on to claim that the material being sought is covered by executive and other privileges; without explaining why his opinion on this subject even matters. He’s also wrong there. The material is not covered by executive privilege. Executive privilege covers communications made in performance of a president’s responsibilities of his office and “in the process of shaping policies and decisions.” Among other things, this means that political activities are not covered by executive privilege.

The committee requested documents related to “the planning and organizing of events in Washington D.C., on Jan. 5 and 6.” Those “events” included speeches by Trump and others at a “Stop the Steal” rally that took place just before his supporters headed to the Capitol. The speeches claimed that the election was riddled with fraud, that Trump was the winner of the election and that Congress should not certify Biden as the winner. Such rallies are obviously not included in a president’s official “duties.” The president has nothing to do with administering elections or counting electoral votes, and certainly nothing to do with attempting to stop that process.

The committee also requested documents related to “attempts to overturn the results of the November 3 election” and “challenges to a peaceful transfer of power.” It goes without saying that attempting to overturn election or challenges to a peaceful transfer of power are not part of a president’s “duties.” In fact, the Biden administration, when refusing to exert executive privilege over the requested documents, said: “The constitutional protections of executive privilege should not be used to shield … information that reflects a clear and apparent effort to subvert the Constitution itself.”

But if his other requests fail, Trump has a backup plan “in the alternative.” He wants the court to declare the entire Presidential Records Act void on the grounds that it “violates the separation of powers.” His complaint never explains how the act violates the separation of powers. (He also filed his lawsuit “under the authority of the Presidential Records Act,” a fascinating bit of legal cognitive dissonance.)

The law was passed in 1978 after former president Richard Nixon claimed that the presidential records generated while he was in office were his personal records and therefore he could do with them as he pleased; including concealing them from Congress. The act establishes public ownership of all presidential records and governs how they will be stored and under what conditions they can be released.

While Trump was president, he was accused of violating this law. He was able to get the case dismissed on the grounds that the court lacked authority to monitor the president’s day-to-day actions. In other words, while Trump was the president, he hid behind the broad authority and discretion granted by the PRA. Now that Trump is no longer president, he argues that it is unconstitutional and should be overturned.

Each of these arguments fails what one lawyer termed the “giggle test.”

Select committee Chairman Bennie G. Thompson, D-Miss., and Vice Chairwoman Liz Cheney, R-Wyo., responded to the lawsuit by saying, “The former President’s clear objective is to stop the Select Committee from getting to the facts about January 6th and his lawsuit is nothing more than an attempt to delay and obstruct our probe.” Indeed, the lawsuit is so sloppily argued that this is the only possible conclusion.

But even if Trump’s case was stronger, it’s hard to see this lawsuit creating much delay in the end. Because records are duplicative and witnesses are cooperating with the committee, and Trump isn’t trying to prevent the committee from getting records housed elsewhere (such an attempt would be too groundless even for Trump), Congress likely probably has much of the material it seeks. Ultimately, the court will have plenty of grounds to make short work of this absurd lawsuit.

Teri Kanefield is an author and a graduate of the University of California Berkeley School of Law. For 12 years, she maintained an appellate law practice in California.

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