The only right response to Trump's executive privilege lawsuit
Biden has the documents. Why not publish them?


Former President Donald Trump is trying to stymie the congressional investigation into his Jan. 6 putsch. Congress has subpoenaed Trump's associate Steve Bannon, as well as documents from the National Archives relating to the day's events. On Trump's orders, Bannon has refused to testify. Meanwhile, Trump has filed a lawsuit against both the House Jan. 6 committee and the archives. Trump is entitled, he claims, to the privacy of executive privilege.
He's not. President Biden should recognize this as an attempt to abuse the legal system to undermine democracy and respond accordingly. He has already rejected the executive privilege claim, but Biden should go further by rejecting the lawsuit and publishing any Trump administration documents related to the putsch immediately. Morevoer, those who defy subpoenas should be arrested and hauled before Congress.
If that seems extreme, it's important to be clear about what's happening here. An example of what not to do can be found at Lawfare, where law professor Jonathan Shaub has a long article looking into the executive privilege question. The Lawfare house perspective is deeply institutionalist and chauvinist, reflecting a wholly unmerited belief in the high quality of American institutions. Shaub's reasoning therefore assumes there is a "correct" answer here that can be divined by reading the entrails of a bunch of vague, poorly-written laws and vague, poorly-written Supreme Court decisions.
Subscribe to The Week
Escape your echo chamber. Get the facts behind the news, plus analysis from multiple perspectives.

Sign up for The Week's Free Newsletters
From our morning news briefing to a weekly Good News Newsletter, get the best of The Week delivered directly to your inbox.
From our morning news briefing to a weekly Good News Newsletter, get the best of The Week delivered directly to your inbox.
In reality, this is about political will-to-power, and neither law nor precedent matter in the slightest. The fact of this lawsuit being filed at all is evidence of utter corruption and malign intent. We all watched in real time — on live television across the world — as Trump whipped up a violent mob which sacked the Capitol in an attempt to disrupt Biden's certification as president. Having done that, Trump is now arguing it would be unconstitutional for Congress to investigate his seditious, violent attack on Congress itself — the heart of American democracy.
A greater offense to the idea of law and constitutional government can scarcely be imagined. Trump's lawyers are stringing some random words together in hopes either of dragging out this process until Republicans can retake Congress (in which case the committee will be disbanded) — or of getting the lawsuit before one of the right-wing fanatics Trump appointed to the judiciary. Their lawsuit would be equally valid if it read: "Mr. Trump is above the law because [donkey braying sound]."
That approach to litigation is predictable, because Trump has been doing this kind of thing his entire adult life. Long ago, he learned that if you are a rich person with time, determination, and no shame, the American legal system will generally give you whatever you want. You just file lawsuit after lawsuit, appeal after appeal, and eventually you win, or your opponent gets exhausted and settles.
This is why Trump never got seriously punished for repeatedly stiffing his contractors and lenders, or violating gambling laws, or committing apparent tax fraud. Even Shaub's conclusion — that Trump probably can't legitimately assert executive privilege but will still be able to keep the committee from getting the documents until 2023 — implies the legal system is a corrupt shambles.
It's all of a piece with the putsch itself. Trump is trying to exploit essentially the same manifest incapacity and systemic corruption he sought to exploit in January, and he'll try it again in 2024. If Biden acts as though this is a normal lawsuit and waits for the courts to weigh in, he will in effect be collaborating with Trump in his ongoing attempt to destroy U.S. democracy.
Luckily, Biden is in the handy position of being president of the United States and in possession of the documents in question. He can simply publish them on the White House website. Trump's despicable lies about executive privilege will be thrown in the trash, where they belong, as a fait accompli, and the public can learn about his administration's plots alongside the House committee. Whatever precedent may or may not say, the American people deserve to know every detail of how our previous president tried to seize power through fraud and violence.
By the same token, Attorney General Merrick Garland, a Biden appointee, is in charge of the federal law enforcement apparatus. If the House or Senate holds Bannon (or anyone else) in contempt for failing to appear, Garland can and should immediately send the FBI out to clap him in irons, seize any relevant documents, and bring him before the committee. (Incidentally, Congress itself could also legally do this using its inherent contempt power.)
Alas, I'll be surprised if Biden does either of these things. His commission on expanding the Supreme Court recently evinced a delusional, Lawfare-style holding that adding seats to the court would be wrong because the public believing the legal system to be corrupt is worse than it actually being corrupt. That's the kind of weak-willed, pathetic helplessness Trump is counting on to finish off American democracy — unless Biden comes to his senses and helps Congress do its vital work.
Sign up for Today's Best Articles in your inbox
A free daily email with the biggest news stories of the day – and the best features from TheWeek.com
Ryan Cooper is a national correspondent at TheWeek.com. His work has appeared in the Washington Monthly, The New Republic, and the Washington Post.
-
Uruguay shaken by 'phantom cow' scam
Under the Radar Cattle seen as a safe investment in beef-mad nation – but the cows, and people's life savings, are nowhere to be found
-
Critics' choice: Steak houses that break from tradition
Feature Eight hours of slow-roasting prime rib, a 41-ounce steak, and a former Catholic school chapel turned steakhouse
-
Tash Aw's 6 favorite books about forbidden love
Feature The Malaysian novelist recommends works by James Baldwin, Toni Morrison, and more
-
Deportations: Miller's threat to the courts
Feature The Trump administration is considering suspending habeas corpus to speed up deportations without due process
-
Asylum: Only white Afrikaners need apply
Feature Trump welcomes white Afrikaner farmers while shutting down the asylum program for non-white refugees
-
Trump pauses all new foreign student visas
speed read The State Department has stopped scheduling interviews with those seeking student visas in preparation for scrutiny of applicants' social media
-
Law: The battle over birthright citizenship
Feature Trump shifts his focus to nationwide injunctions after federal judges block his attempt to end birthright citizenship
-
The threat to the NIH
Feature The Trump administration plans drastic cuts to medical research. What are the ramifications?
-
Courts try to check administration on deportations
Feature The Supreme Court will allow the Trump administration to end protected status for Venezuelans, but blocks deportations under the Alien Enemies Act
-
House GOP pushes ahead on deficit-boosting tax bill
Feature Republicans push a bill that will lock in Trump's tax cuts, cut Medicaid and add trillions to the national debt
-
'Gen Z has been priced out of a future, so we invest in the present'
instant opinion Opinion, comment and editorials of the day