We appear to be moving toward a critical moment for rule of law in the United States, where it will finally be vindicated or a mockery. Unsurprisingly, former President Trump instructed his aides to defy the Jan 6th committee’s subpoenas. The legal instructions were reported yesterday by Politico and the Post. They involve mostly hand-waving with turns at executive privilege, lawyer client privilege and various others. None of these aides are lawyers and they are not the President’s lawyers. Former Presidents have no executive privilege. Or to put it more precisely, executive privilege inheres in the office of the presidency, not individuals. The President is Joe Biden. Not Donald Trump. It’s up to him to make such an argument. Trump can ask.
Now, here we get into a cloudy terrain of a corrupted federal judiciary. Anyone can make any argument they want. The federal appellate courts can and sometimes do credit the most inane legal arguments if they benefit the Republican party. But according to American law up to this point at least, Donald Trump can’t invoke executive privilege.
You might say, wait, I’ve heard former Presidents invoke privilege before. Not precisely. The process is that the current President in almost every case defers to the requests of the former Presidents. This is both a matter of courtesy and a defense of the privileges of receiving confidential advice in which all Presidents, regardless of party, have some common interest. But the decision is Joe Biden’s.
The particulars are less important than the big picture. Can a former President who directed a conspiracy to overturn a lawful election stymie a lawful investigation by infinite delays based on frivolous claims? That is what happened during Trump’s presidency. And that is a lapse the country has already suffered grievously for. But there are unique difficulties with a serving President. There are at least three distinct reasons for this. The first is executive privilege itself which a sitting President can repeatedly assert. The privilege is real and, though frequently abused, is an important tool for preserving the standing of the presidency vis a vis Congress and others. The second fact is that the President controls the Justice Department. To put it bluntly, if you’re investigating the President you have to contend with the fact that the cops work for the President. Finally, a sitting President controls the records of the federal government. And possession is nine-tenths of the law. Yes, the Supreme Court can finally order the President to turn over documents, as it did in 1974 in the tapes case which triggered the end of Richard Nixon’s presidency. But there are a lot of steps before you get to that point and a lot of deference courts give a sitting president. As long as you’re the one in possession of the records, someone has to directly order you to turn them over. That drives lots of litigation.
This is an unfortunate dimension of investigating a President. But we have to blame ourselves rather than the constitution. The constitution provides a remedy for a lawless President: impeachment and removal from office. Congress twice got that opportunity and declined both times. That’s on us. But that whole set of obstacles is off the table with a former President.
Preventing the President from stymieing a lawful investigation will require action by three separate parties. Congress must use fines and eventually imprisonment to compel action. The Department of Justice must refrain from imposing needless barriers under the institutional misapprehension that these are customary defenses of presidential privilege. It must also use its enforcement capacity to assist Congress. Finally, a corrupted federal judiciary must resist the temptation to maim the law to enable the former president’s law-breaking.
The decision on whether to charge a former President with a crime is a weighty one. The decision to conduct a proper investigation of one is not. There are no excuses this time. Trump is just another lawbreaker and target of an investigation. Vindicate the law.