Donald Trump is desperately trying to stop, or at the very least stall, the subpoenas from the Jan. 6 House Select Committee, but a CNN report explained that there are few legal options available to the former president. The current plan appears to be to bury any House request with years of lawsuits, said CNN.
Monday, Trump filed a lawsuit to stop the National Archives from handing over any communications from his White House staff relating to Jan. 6, organization and planning around the event and any efforts to promote rage among his supporters around a "stolen election."
"According to the court filings, Trump has less than a month to get an initial court order blocking the release of the records," said the report. "The National Archives told Trump last week that it intended to turn over the documents on Nov. 12, as President Joe Biden had declined to assert executive privilege over them."
In a statement Tuesday, the White House made it clear that it will not give Trump the executive privilege protections he seeks because it considers his actions around Jan. 6 to have "represented a unique - and existential - threat to our democracy." The White House also has the law on its side. In 1977, the Supreme Court ruled against then-President Richard Nixon, making it clear that executive privilege doesn't extend to investigations into criminal behavior.
Tuesday, former U.S. Attorney Joyce Vance explained that Trump ally Steve Bannon has no hope of being able to declare executive privilege to protect his testimony from Congress, as he wasn't even working for the White House at the time.
The CNN report said that Trump must step forward quickly if he wants to try and delay the documents from being handed over. Congress is now running up against the 2022 midterm election. If Trump can stall long enough for the Republicans to take over the House, then he can eliminate the committee entirely. There's also a movement to appoint Trump the new Speaker of the House if Republicans do take over the body next November.
"If Trump does secure a temporary court order -- a request he's likely to take to the Supreme Court if need be -- blocking the Nov. 12 release, the pace of the proceedings could slow down quite a bit," said CNN. "At least some of the legal ground the lawsuit is seeking to explore is unsettled and could prompt courts to give the questions deliberate review."
"In some ways, it really works in President Trump's favor, because there are so many questions that courts will have to address for the first time," the report said, citing Professor Emily Berman from the University of Houston Law Center.
As with the 2020 election, Trump faces a conservative 6-3 majority at the Supreme Court, dominated by those he appointed. During the debate over the election, Justice Department documents revealed Trump assumed that those judges would hand him the victory if the DOJ declared that the election was "corrupt."
It didn't work in that case, but it appears Trump is banking on his judges again when it comes to the Jan. 6 documents. In previous litigation, Trump could use the power of his presidency to block all documents from being released. Since he no longer enjoys the protection of the Office of the Presidency, the burden is no on him to prove why the documents can't be released.
"The posture of this particular suit makes it possible that this could move much faster than say, like the McGahn litigation," said former Justice Department OLC lawyer Jonathan Shaub. That suit was when the House was suing for Don McGahn to appear before the committees to testify.
The first judge that Trump will appear before was appointed by former President Barack Obama, Judge Tanya Chutkan.
"She is a very efficient judge and I suspect will move on this very quickly," said Obama's former White House counsel Neil Eggleston. If she denies his claim, Trump will be forced to face off against the D.C. Circuit Court of Appeals, which also isn't stacked with Trump-friendly judges. He would then be forced to go to the Supreme Court.
While Trump has plenty of arguments he can make to claim privilege, the House can effectively argue "we have the power to investigate an armed assault against our institution," Eggleston said. "I don't see a court saying, 'Oh no you just have to sit on your hands. ... You have to leave that to another branch of government.' I think that would be a laughable response by a court."
