According to a deep dive into how Donald Trump may try to swat aside the subpoena issued by the House Jan. 6 committee late Friday, the New York Times reports that the issue of whether he can be forced to appear remains murky, but one key defense his lawyers could attempt would likely put the former president at the mercy of President Joe Biden.
As Charlie Savage and Alan Feuer wrote, the former president has indicated he would like to appear before the committee -- but on his terms -- which most observers believe is unlikely.
With that in mind, and with the former president being compelled to testify by subpoena, the Times reports that his lawyers have multiple paths, many of them untested, to fight the demand that the former president appear to be questioned about his part in the insurrection at the Capitol building.
Noting that the Jan. 6 committee is under the gun, the report points out they have approximately 2 1/2 month to get Trump under oath with the midterms looming and GOP control of the House probable.
According to Mark J. Rozell, of George Mason University, who authored, “Executive Privilege: Presidential Power, Secrecy and Accountability,” there are challenges on both sides of the legal squabble.
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“We are in a constitutional gray area here where there is no clear guidance as to exactly what should happen,” he explained. “That gives the former president some leeway to put forward various creative legal arguments and ultimately delay the process until it doesn’t matter anymore.”
One path that Trump's lawyers might choose is to play the executive privilege card which would be a gamble since it could ultimately depend upon how President Joe Biden reacts.
"Mr. Trump’s legal team could also invoke executive privilege in an attempt to ward off the subpoena. In another case involving Richard Nixon, the Court of Appeals for the D.C. Circuit ruled in 1974 that a Senate committee investigating the Watergate scandal could not force Nixon, then the sitting president, to turn over tapes of his Oval Office conversations," the report states before adding, "The appeals court ruled that the Senate’s need for the tapes was not enough to overcome the presumption of confidentiality guarding the presidential decision-making process."
But there is a key difference in the case of Donald Trump.
"Unlike Nixon in 1974, however, Mr. Trump is now a former — not a sitting — president, and his claims to executive privilege would be weaker. The current officeholder, President Biden, who has greater authority to invoke or withhold executive privilege, might not support him," the Times report states. "Notably, Mr. Biden declined to support an earlier attempt by Mr. Trump to invoke executive privilege to keep the Jan. 6 committee from subpoenaing the National Archives for White House records. The Supreme Court, ruling against Mr. Trump, declined to block the subpoena, although it did so in a way that left unresolved the scope of an ex-president’s powers under executive privilege."
The report adds, "Still, courts might view forcing a former president to show up at the Capitol and testify under oath differently than obtaining documents."
You can read more here.