January 6 Committee should challenge defiant Trump officials in court

Former President TrumpDonald TrumpMeat industry groups pledge to meet Paris Agreement emissions targets by 2030 Judge tosses part of DC AG’s suit against Trump inaugural committee Rep. Gosar posts anime video showing him striking Biden, Ocasio-Cortez MORE‘s advisers are defying subpoenas from the House January 6 Committee, calculating that they can run the clock out until Republicans retake the House in 2022 and, presumably, put the committee out of business. They shouldn’t get away with it. 

Regardless of what one thinks of the Democratic messaging about the Capitol riot — I think it is demagogic — it is obviously proper for Congress to investigate an attack on Congress itself, particularly one intended to obstruct a constitutionally-mandated proceeding to count state electoral votes. By law and logic, the committee is within its rights to probe President Trump’s actions before, during and after the uprising. 

The committee should ask the federal courts to reject the claim that the former president’s purported assertion of executive privilege permits his advisers to defy committee subpoenas. 

To be clear, I have always opposed the notion that Congress should rely on courts to press its demands for information from the executive branch. And I believe it is absurd for a former president to claim executive privilege, as if he were the president in power. 

But of course, it doesn’t matter what I think. The blunt fact is that the Supreme Court has said that former presidents retain the constitutional authority to assert executive privilege regarding communications with aides that occurred during their presidencies. 

The committee can vent its spleen from now until the end of time about how contemptuous and potentially criminal it is for former Justice Department official Jeffrey Clark and former presidential adviser Steve BannonStephen (Steve) Kevin BannonHere are the six latest Trump allies to be subpoenaed by Jan. 6 panel Jan. 6 panel issues six new subpoenas for Eastman, top Trump aides Pediatrician unveils challenge to GOP’s Mace in South Carolina MORE to flout its subpoenas — refusing to testify and surrender documents. But the recalcitrant witnesses are relying on Supreme Court precedent.  

The decision in question, Nixon v. Administrator of General Services, is terrible. But you can’t blame the witnesses for relying on it. For present purposes, and for the future, the committee should ask the Supreme Court to renounce it. 

Authored by Justice William Brennan in 1977, the decision is a product of its judicially freewheeling time, when the court often made it up as it went along. In that spirit, the majority stated:

“The confidentiality necessary to this exchange [of information between a president and his advisers] 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…