Trump’s use of executive privilege will test congressional power to

WASHINGTON — The House committee investigating the Jan. 6 riot at the U.S. Capitol is exploring ways to enforce its subpoenas after former President Donald Trump asserted executive privilege, an attempt to keep documents from his time in office from being turned over.

But under current law, lawmakers have few options. The committee’s best hope may be a change of heart at the Justice Department on whether to prosecute those who refuse to cooperate.

The committee is seeking records from the Trump White House and testimony from former administration officials. Trump notified the National Archives, which maintains the documents, that he formally asserts executive privilege.

President Joe Biden, however, concluded that the privilege should not apply. The White House counsel, Dana Remus, said the documents “shed light on events within the White House on and about Jan. 6 and bear on the Select Committee’s need to understand the facts underlying the most serious attack on the operations of the Federal government since the Civil War.”

Trump’s next move would be to sue the National Archives, hoping to prevent the documents from being turned over. However, the courts have never clarified the exact nature of a former president’s ability to assert executive privilege. Trump clearly has some ability to assert it, but his claim is weakened by Biden’s refusal to recognize it.

The Supreme Court said in a 1977 case, involving a lawsuit against the National Archives brought by former President Richard Nixon, that the current occupant of the White House “is in the best position to assess the present and future needs of the executive branch.”

Trump has also notified former officials of his administration that he intends to make the same privilege claim regarding their potential testimony before the committee. If they defy the subpoenas and refuse to appear, the House could vote to hold them in contempt of Congress.

Under a law passed in 1857, Congress has the authority to refer a contempt vote to the U.S. attorney’s office in Washington for prosecution. However, no criminal charges have ever been filed when an assertion of executive privilege is involved, according to legal scholars.

The Justice Department has long taken the position that it has the discretion to determine whether to prosecute. And since at least 1984, it has determined that the criminal contempt of Congress law cannot constitutionally be applied to a presidential claim of executive privilege.

“If the Justice Department wanted to pick someone not cooperating with the Jan. 6 investigation as a test case for a contempt of Congress prosecution, I could think of worse test cases,” said Steve Vladeck, an expert on federal court procedure at the University of Texas at Austin School of Law.

The committee has two other options. One is what’s known as the inherent contempt power of Congress. The courts have long established that either house of Congress has the power to round up reluctant witnesses and, if…