Former President Donald Trump really, really does not want the House January 6 committee to get access to his White House records about the insurrection. According to a lawsuit he filed this week to block the National Archives from releasing the documents, that desire is born from a staunch desire to preserve the presidency, the constitutional separation of powers, and even the republic itself from Democratic interlopers. At least, that’s how his spokesman described the lawsuit in a statement to Politico earlier this week.
“Today, President Donald J. Trump filed a lawsuit in defense of the Constitution, the Office of the President, and the future of our nation, all of which the sham Unselect Committee is trying to destroy,” Trump spokesman Taylor Budowich told the news outlet. “The fact is America is under assault by Pelosi’s Communist-style attempt to silence and destroy America First patriots through this hyper-partisan and illegitimate investigation.”
Americans are truly blessed that former President Trump is willing to defend the sacred democratic principle of defying congressional inquiries. A more honest interpretation of Trump’s view of “constitutional” is fairly simple: anything that would be personally good for him is legal, constitutional, and entirely appropriate, and anything that would be personally bad for him is not just illegal and unconstitutional but also illegitimate, fraudulent, deeply partisan, and a danger to truth, justice, and the American way. He concedes no limits on his power beyond those he is willing to accept. This theme, which once permeated every aspect of his presidency, now permeates every aspect of his postpresidential public relations strategy when it comes to—well, just about anything.
Trump’s scorched-earth thinking is hardly new. The Mueller investigation, which probed whether Trump and his associates had colluded with the Russian government to undermine Hillary Clinton in 2016, was continuously derided by Trump as a “corrupt witch hunt.” His first impeachment saga, in 2019, which came about after he attempted to coerce the Ukrainian government into falsely smearing Biden ahead of the election, was falsely described by the former president as an “attempted coup.” His second impeachment saga, in 2021, arising from his decision to incite a mob to attack Congress and prevent the peaceful transition of power, was cynically denounced by Trump as an authoritarian attempt to “silence a political opponent and a minority party.”
Along the way, Trump’s self-absorbed approach to the American constitutional order has led him and his lawyers to strange places. In a Supreme Court case last year, for example, Trump attorney Jay Sekulow told the justices that Trump’s financial records couldn’t be subpoenaed by the Manhattan district attorney’s office because it might somehow distract Trump and thus lead to more deaths during the Covid-19 pandemic. Seven of the nine justices found this reasoning unpersuasive, to say the least, and even the two dissenters declined to embrace it. During his second impeachment trial, earlier this year, Trump’s lawyers made the head-spinning claim that if the Senate convicted him of inciting an insurrection, it would violate the First Amendment’s protections for free speech.
Similarly tortured logic abounds in his lawsuit against the January 6 committee. Trump’s lawyers begin by asserting that the committee “has decided to harass President Trump and senior members of his administration (among others) by sending an illegal, unfounded, and overbroad records request to the Archivist of the United States.” Under the Presidential Records Act, the Trump White House records are kept by the National Archives. The PRA also gives former presidents some ability to delay or challenge records requests that could affect executive privilege for a certain number of years, though ultimate discretion is left to the sitting president.
That matters little to Trump, whose belief that any legal processes wielded against him are de facto illegitimate did not end with his presidency. Though congressional investigations are as old as the republic itself, Trump argued that they are generally unconstitutional. “Article I of the Constitution does not contain an ‘Investigations Clause’ or an ‘Oversight Clause,’” the lawsuit claimed. “It gives Congress the power to enact certain legislation. Accordingly, investigations are permissible only insofar as they further some legitimate legislative purpose.”
The Supreme Court acknowledged some limits on Congress’s ability to request or subpoena presidential records in last year’s ruling in Trump v. Mazars. At the same time, except for Justice Clarence Thomas, the justices rejected the Trumpian notion that Congress can never seek those records out. This modest victory for Trump was described by his lawyers in much more sweeping terms. “As the Supreme Court recognized in shooting down another congressional fishing expedition directed at President Trump’s records, such legitimate legislative purposes do not include ‘law enforcement’ powers ‘assigned under our Constitution to the Executive and the Judiciary,’ inquiry into private affairs, or ‘to expose for the sake of exposure,’” they argued.
Then comes a staggering act of projection by Trump’s lawyers. “Ultimately, the Committee is attempting to damage the republic itself, and the citizens of the United States, for executive privilege ‘safeguards the public interest in candid, confidential deliberations within the Executive Branch; it is fundamental to the operation of Government,’” they wrote, quoting the Supreme Court’s ruling in the Nixon Watergate tapes case. Only in Trumpworld could an inquiry into Trump’s involvement in an attack on the Capitol be more harmful to the republic than the attack itself.
The lawsuit also criticized the Biden administration for giving Congress access to the records, which prompted Trump’s lawsuit in the first place. “Notably, the Biden administration’s waiver of executive privilege is a myopic, political maneuver designed to maintain the support of its political rivals and is not based on any discernible legal principle,” Trump’s lawyers argued, somewhat incoherently. They argued that Biden’s actions were an “unprincipled political accommodation,” which is risible coming from Trump, and “directly contrary to Supreme Court precedent,” even though the Supreme Court has never addressed a former president’s invocation of executive privilege before.
The real coup de grâce comes toward the end of the lawsuit. As I mentioned earlier, the Presidential Records Act gives the final say on invoking executive privilege to a sitting president, not to a former one. All that a former president can ultimately do is delay the process and seek accommodations. In theory, that would bode poorly for Trump’s efforts to block the National Archives from releasing his papers to Congress. But Trump’s lawyers have another trick up their sleeve: getting rid of the PRA altogether.
“If the PRA is read so broadly as to allow an incumbent President unfettered discretion to waive the previous President’s executive privilege, mere months following an administration change, then it would render the act unconstitutional,” Trump’s lawyers concluded. There is no reasoning or explanation for why it would be unconstitutional; it is so declared in their filing as if it were as self-evident as the sun rising in the east. The only case law that’s quoted to support this extreme proposition is from Mazars and Nixon, where the court only blandly noted that executive privilege “safeguards the public interest in candid, confidential deliberations within the executive branch” and “is fundamental to the operation of government.”
Unless there is some section that’s visible only to Trump and his lawyers, the Constitution makes no provisions for “former presidents” or “previous presidents” when describing the nature or limits of executive power. Maybe Trump is hoping that conservative, Congress-averse jurists on the D.C. Circuit Court of Appeals or the Supreme Court will throw him a bone here and read some sort of special status for ex-presidents into the Constitution. Maybe he genuinely believes that some sort of residual imperium is still attached to him, like an abdicated European monarch. In either event, it would be a grim sign for American democracy if the courts agreed.