The White House has formally rejected Donald Trump's attempt to claim executive privilege over documents relating to Jan. 6, authorizing the National Archives to turn them over to Congress. Trump is likely to take this to court, but so far the courts have generally held that decisions about executive privilege reside with the executive. That’s President Joe Biden, not Donald Trump.
That was one of two signs of possible movement Friday in the investigation into the attack on the U.S. Capitol. On Thursday, some of Donald Trump’s former aides and advisers blew through their subpoena deadlines from the House select committee investigating Jan. 6, after Trump’s lawyers called on them to do just that. So now it’s time for the committee to show that it will not be trifled with, and while a statement from the committee’s leaders didn’t go as far as some of us might have liked, it definitely didn’t indicate a plan to fold, either.
On the question of the White House documents, “President Biden has determined that an assertion of executive privilege is not in the best interests of the United States, and therefore is not justified as to any of the documents,” White House counsel Dana Remus wrote.
“Congress is examining an assault on our Constitution and democratic institutions provoked and fanned by those sworn to protect them, and the conduct under investigation extends far beyond typical deliberations concerning the proper discharge of the President’s constitutional responsibilities,” Remus continued. “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.”
The House committee, meanwhile, is considering its options after the expiration of a subpoena deadline for former White House chief of staff Mark Meadows, aide Dan Scavino, administration official and diehard loyalist Kash Patel, and former campaign manager Steve Bannon. The Lincoln Project’s Rick Wilson had claimed inside information that “As of now 1/6 commission is dead already, and will not enforce the subpoenas.”
Reps. Bennie Thompson and Liz Cheney, the chair and vice chair of the committee, responded that they did intend to enforce the subpoenas, though the terms of their response left something to be desired.
“While Mr. Meadows and Mr. Patel are, so far, engaging with the Select Committee, Mr. Bannon has indicated that he will try to hide behind vague references to privileges of the former President. The Select Committee fully expects all of these witnesses to comply with our demands for both documents and deposition testimony,” they said in a statement.
“Though the Select Committee welcomes good-faith engagement with witnesses seeking to cooperate with our investigation, we will not allow any witness to defy a lawful subpoena or attempt to run out the clock, and we will swiftly consider advancing a criminal contempt of Congress referral.”
They will swiftly … consider it? How about swiftly doing it?
And what does “engaging” with the select committee, as applied to Meadows and Patel, mean? Does that mean they have started to turn over documents and schedule a deposition, or does it mean they’re attempting to run out the clock by pretending like they might comply sometime?
As for a criminal contempt of Congress referral, that would be good and it should be done today, now, first, right away. But what about other options? Rep. Jamie Raskin previously suggested a more comprehensive response to the defiance of the committee’s subpoenas, saying, “I believe this is a matter of the utmost seriousness and we need to consider the full panoply of enforcement sanctions available to us, and that means criminal contempt citations, civil contempt citations and the use of Congress’s own inherent contempt powers.” Inherent contempt, in which the sergeant-at-arms can detain someone and deliver them to Congress, hasn't been used in close to 90 years, but this may be the time if the Justice Department does not respond swiftly to a criminal referral from the committee.
Both the White House rejection of executive privilege and the committee’s plan to consider a criminal contempt referral show forward motion in the investigation into Jan. 6, even if they also set up legal fights that are likely to delay the process to a ridiculous extent considering the flimsiness of Team Trump’s case here.