Former president Donald Trump's attempt to block Congress from obtaining records related to the Capitol insurrection could backfire — bigly.
If Trump files a lawsuit asserting executive privilege over the records, it could prompt a judge to determine there is reason to believe the documents include evidence of criminal wrongdoing, according to attorney and author Teri Kanefield.
Trump "would then need to worry about the crime-fraud exception, which states, quite sensibly, that a privilege cannot be used to conceal illegal behavior," Kanefield writes at NBC News, noting that the Biden administration has already indicated it will seek to invoke the crime-fraud exception.
"The constitutional protections of executive privilege should not be used to shield, from Congress or the public, information that reflects a clear and apparent effort to subvert the Constitution itself," White House counsel Dana Remus wrote last week, in blocking Trump's initial effort to assert executive privilege over documents sought by the House select committee investigating Jan. 6.
The Biden administration's decision means the matter is likely headed to court, where Kanefield predicts Trump will lose. Congress passed a law in 2014 giving the final say over executive privilege, at least as it applies to the executive branch, to the current president. (Kanefield notes that Trump never tried to change this law while in the White House. In fact, he asserted that the president has complete control over the executive branch, which is now led by Biden.)
"We can expect the question of the crime-fraud exception to unfold procedurally the way it does with attorney-client communications: After Trump files his lawsuit, Biden or perhaps the Justice Department would file a motion asking the court to consider whether the crime-fraud exception applies to the material," Kanefield writes. "The motion, of course, would include evidence supporting the claim that the documents include evidence of wrongdoing."
Kanefield argues it's a "good bet" that material sought by the House committee includes evidence of wrongdoing.
"For example, if documents the House has subpoenaed show that Trump or any members of his inner circle intended to delay or hinder counting of the electoral votes on Jan. 6, they would be in violation of 18 U.S.C. 1505," she writes. "And we already know that Trump and his inner circle discussed how to delay the counting of the electoral votes. See the Eastman memo, which outlined a plan and a legal rationale for overturning the results of the election."
The Senate Judiciary Committee also concluded in a report last week that, "In attempting to enlist DOJ for personal, political purposes in an effort to maintain his hold on the White House, Trump ... arguably violated the Hatch Act."
"Trump may very well still try to use lawsuits to run out the clock on these congressional document requests," Kanefield writes. "This strategy likely would not prevent Congress from getting the documents. But it could force a court to rule that there is reason to believe the documents in question include evidence of wrongdoing — a legal lose-lose scenario that any lawyer worth his retainer would be wise to recommend against."