Former President Trump
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 Bannon
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…
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