Hibben: Trump’s Desperation Has Hit an All-new Low

Photo by Gage Skidmore, courtesy of Creative Commons

Photo by Gage Skidmore, courtesy of Creative Commons

By Aya Hibben, Opinion Writer


Attempts to investigate the planning and execution of the January 6th insurrection attack have been thwarted by former President Donald Trump.

The House committee in charge of investigating the attack has requested and subpoenaed several documents from members of Trump’s administration and inner circle. However, Trump is suing the chairman of the Jan. 6 committee and the head of the National Archives, with more lawsuits on the way as current President Joe Biden has refused to grant executive privilege to protect Trump.

Trump’s efforts to conceal his administration’s part in the attack have raised important legal questions concerning secrecy and presidential privileges.

President Biden is correct to block the protections that Trump demands. Trump is actively standing in the way of Americans finding out the inner workings of a domestic terror attack. Even if he and his administration committed no crimes, Trump’s desperation to hide this information should be an indication that he fears more for himself than the future of this country.

What is Executive Privilege?

Executive privilege is a power claimed by presidents and supported by the Supreme Court to protect the executive branch from the other branches of government from revealing the internal communications of the executive branch. The Constitution does not explicitly mention it, but it is an assumed power that allows presidents to work without fear of future investigations.

I spoke with associate law professor Christina Koningisor about the complexities of this case. Pointing to the court’s decision in Nixon v. United States, she said, “the first [purpose] is to ensure candor in deliberations. The second purpose is to protect the executive branch from interference by Congress and the courts.”

Executive privilege is not bulletproof. There must be a “showing of need” for the power to be yielded. During the Watergate scandal, the Court ruled that President Nixon’s tapes could not be protected by executive privilege in a criminal inquiry.

It is certain that any court would agree that the House’s efforts to find out what happened on January 6th and try to prevent any future insurrections fit the standard for “need.” In 2014, Congress passed a statute that says the incumbent president has the right to afford executive privilege to former presidents. Koningisor acknowledges, however, that there is no precedent that “resolve(s) the tension between a sitting president and a former president’s competing claims.”

What is Trump Fighting against and Why?

The January 6th Committee is attempting to figure out what part Trump and his administration played in the attack, and how to prevent future attacks. The committee has also subpoenaed witness testimony for several Trump staffers, including Stephen Bannon. Bannon is refusing to cooperate and is now being held in criminal contempt.

Trump has already filed a lawsuit to prevent these documents and statements from being released, and is saying that the request was a “vexatious, illegal fishing expedition.” Republicans are still attempting to protect Trump from these attacks, trying to invalidate the election he lost and defending the deadly attack on the Capitol as a reasonable protest.

But why is Trump continuing to lie? While his efforts to conceal this information might simply be to protect himself from criminal prosecution, a warning from former Ohio Republican Representative Anthony Gonzalez sheds some light on why Trump won’t give up. In a CNN documentary he says, “I think it’s all pushing towards one of two outcomes: He either wins legitimately, which he may do, or if he loses again, you just try to steal it.”

Even if he doesn’t attempt to fraudulently win the next election, Koningisor said, “I think President Trump will likely appeal any adverse decision against him in the hopes of delaying a decision until beyond the midterm elections, at which point control of Congress may shift.” So, even if his efforts in court fail, he could just be trying to delay a decision until Congress is strongly controlled by Republicans again. Either way, Trump’s efforts are more concerning than a simple grab for attention.

Why Trump’s Claims to Executive Privilege Won’t Work

Ironically, Trump’s statements against Biden’s power to afford executive privilege contrasts his efforts during his administration. He worked to promote the unitary executive theory, which argues that only the current president has control over the executive. Since Biden is currently in office, Trump’s past claims contradict his now desperate reach for secrecy.

Trump’s attempts to conceal this information could backfire, as the committee could assume that his administration played some role in the violence. The crime-fraud exception, which also can yield attorney-client privilege, could be used in court to argue that Trump is attempting to cover up illegal activity. But this exception is dangerous. Koningisor says “The concern might be that congressional investigations by an opposing party might be tempted to frame every inquiry as one that is investigating a presidential crime.”

There is already plenty of publicly-available evidence that indicates Trump and his administration intended the protest to delay the certification of the 2020 election. Koningisor said “I think without seeing the documents themselves, we can only speculate. Which is itself, I think, a powerful argument in favor of access.”

Trump and his Republican colleagues can continue to argue nine months after the attack that the committee’s efforts are to persecute Trump. However, their efforts leave a stain on our country’s history, as prominent political leaders continue to defend against a terrorist attack. The attack on January 6 was a reaction to these leaders’ efforts to reverse the 2020 Presidential election. Loss of life occurred because of these lies.

No matter the content of the documents and testimonies the former President tries to hide, any attempts to prevent transparency should be viewed as treasonous. His new crusade to keep his administration’s actions a secret directly goes against the promises he made. Given his considerable attempts to spread disinformation and lies about the results of the 2020 Presidential election, Trump’s continued efforts to disrupt our nation’s peace cannot continue.


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