Bipartisan Group of Former Lawmakers Files Brief Against Trump's Claim of Executive Privilege

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For almost four decades Trump’s survival depended upon secrecy, he rarely met a person he didn’t require sign a non-disclosure agreement. Now, a bipartisan group of former lawmakers wants the court to know that Trump’s claim to executive privilege should not apply to possible secrets regarding Trump’s role in his attempt to overturn the 2020 election.

It is true that certain privileges exist within the United States’ executive branch, but they are not impenetrable and often depend upon the nature of the claim. Does it involve internal policy discussions? Possible strategies to initiate executive action? International diplomacy and strategies? A President is on far safer ground in claiming any of the above as the basis for the privilege. All privileges exist to promote communication deemed to promote public values.

But no privilege, not attorney-client, not doctor-patient, husband-wife, or even an assertion of executive privilege applies to communication used to further a crime. The suspicion that documents and testimony may reveal evidence of criminal activity within the Trump administration allowed a powerful group to give a powerful whack at Trump’s wall of secrecy yesterday. According to Politico:

Sixty-six former lawmakers, including two dozen Republicans, have signed on to a legal brief urging a federal judge to reject former President Donald Trump’s effort to block Jan. 6 investigators from accessing his White House’s records.

The brief, which is slated to hit the docket in the D.C. federal District Court on Friday, contends that no possible argument about executive privilege could overcome Congress’ need for documents to probe the violent attack on the Capitol — one fueled by Trump’s false claim that the 2020 election was stolen.

The Court is under no obligation to consider the brief because it comes from a non-party. But given that it was filed by a powerful and wide-ranging group, the brief will almost surely capture the court’s attention.

Executive privilege is a bit of a tricky area because most issues (pre-Trump) were settled privately between Congress and the White House. There is not a lot of definitive case law. Many speculate that the lack of court guidance owes itself to the fact that both parties are terrified of the possible answers.

The brief is also more powerful than the typical third-party brief because judges do not live in a vacuum, oblivious to national politics or events. The judge (and coming appellate judges) surely know that the current Republican lawmakers are under excruciating pressure to support Trump in the matter. But former lawmakers have the freedom to say, “We as former lawmakers know that Congress deserves the right to demand these documents.”

Of course, there is no evidence, yet, that Trump played any direct role in the insurrection, or that Trump’s need for secrecy is based upon the fear that direct or circumstantial evidence exists. What is known is that Trump’s feral survivability was always based upon a fortress of secrecy. The bridge to this one may be crumbling. And God only knows what might lay behind.
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jmiciak@yahoo.com and on Twitter @JasonMiciak

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Jason Miciak

@JasonMiciak believes a day without learning is a day not lived. He is a political writer, features writer, author, and attorney. He is a Canadian-born dual citizen who spent his teen and college years in the Pacific Northwest and has since lived in seven states. He now enjoys life as a single dad of a young girl, writing from the beaches of the Gulf Coast. He loves crafting his flower pots, cooking, and currently studies philosophy of science, religion, and non-math principles behind quantum mechanics and cosmology. Please feel free to contact with any concerns.