Trump’s allies think they can defy the Capitol attack panel. History

Donald Trump’s extraordinary claim of executive privilege as a former president to prevent any of his aides and agents from testifying before the House select committee to investigate the 6 January attack on the US Capitol rests on the premise that the privilege resides with a president even after he leaves office. Trump is asserting that the position of former president is a recognized constitutional office with permanent rights and privileges. President Joe Biden, the incumbent president who rightfully holds executive privilege, has waived that privilege from covering the relevant documents and potential witnesses Trump wishes to keep secret and silent.

Standing behind Trump’s supposed shield, a number of those subpoenaed by the committee refuse to cooperate with the investigation. Stephen Bannon, a Trump White House aide early in his term but not during the insurrection, has been cited for criminal contempt and indicted by the Department of Justice. Mark Meadows, Trump’s chief of staff, who was at the center of the plot, and Jeffrey Clark, the former assistant attorney general, who plotted to have states overturn lawful election results on baseless theories of fraud, have refused to cooperate on the grounds of an unspecified legal executive privilege.

The US court of appeals for the DC circuit has granted Trump a temporary administrative injunction against the National Archives from turning over certain subpoenaed documents to the committee, in order to hear full arguments in the case on 30 November. In a prior ruling, however, Judge Tanya S Chutkan stated, “Presidents are not kings, and Plaintiff is not President.”

Trump’s claim of executive privilege is based on his claim that as a former president he retains a “constitutional and statutory right” to protect his “records and communications” under any and all circumstances. His lawyer, in his emergency appeal to stay the disclosure, denies that the House committee has any “legislative purpose” and is merely “a rival political branch” – a rival apparently to a former president, who is implicitly another “political branch” even though he is no longer in office. President Biden, the appeal alleges, is simply a member of “rival political party”, acting on naked partisanship. Release of Trump’s communications in question, far from serving any legitimate government purpose, is designed only to “meet a political objective”.

The attempted coup to overthrow a democratic election seems so astonishing and novel that the filings in the case have failed to come up with any remotely similar situation. But there is a precedent as exact and specific as it could be – and it directly contradicts Trump’s contentions.

In fact, there was a House select committee empaneled to investigate an insurrection. That committee requested the papers of the president, subpoenaed the testimony of his cabinet secretaries and members of his administration, and called for the…