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Trump in the Wings?

The lawsuits over the former president’s executive privilege claims feed into the far-right narrative that he is the rightful president.
November 16, 2021
Trump in the Wings?
US President Donald Trump speaks at a "Make America Great Again" rally in Newtown, Pennsylvania, on October 31, 2020. (Photo by MANDEL NGAN / AFP) (Photo by MANDEL NGAN/AFP via Getty Images)

Defenders of democracy scored two significant points last week. First, a federal district judge rejected former President Donald Trump’s assertion that his claim to executive privilege is stronger than President Joe Biden’s. Then the Department of Justice indicted Steve Bannon on two counts of contempt of Congress.

Alas, for anyone hoping those developments mean we’ll soon see a restoration of the rule of law and basic accountability, it’s hardly time for optimism.

These legal losses are stealth wins for Trump insofar as they feed the right-wing narrative that he—not Biden—is the rightful president. The lawsuits elevate Trump’s stature, giving the misimpression that the ex-president is sufficiently powerful to create constitutional clashes with the actual constitutional government. In effect, Team Trump is quietly fueling the Big Lie through the legal system. The prognosis for democracy is bleak.

As I explained here last week, Trump rests his lawsuit to enjoin the National Archives and Records Administration (NARA) from transmitting official White House records regarding the January 6 insurrection to Congress on “executive privilege.” But the actual president, Joe Biden, has determined not to exert executive privilege over the very same documents. The Constitution establishes a single-person presidency: “The executive power shall be vested in a President of the United States of America.” “A” president—as in only one. The rationale at the Constitutional Convention of 1787 was partly that the alternative—some sort of executive committee comprising multiple people—could not act nimbly to make crucial decisions in real time, and would not be as readily accountable to the people.

Biden is the president. Trump is not. By suing NARA and securing an injunction that temporarily binds Biden’s hands, Trump is shoring up the perception among his devotees that he is a sort of shadow president or president-in-waiting—or worse, for his most conspiracy-minded fans, that if there’s only one president, it is Trump who has the real power. Whether or not Trump prevails on his executive privilege claim under the Presidential Records Act (he should lose under the law), the fact that he has gotten this far in the lawsuit is a win in terms of the public perception, certainly among his followers, that he is strong and that Biden—and thus the Constitution itself—is relatively weak.

To be sure, it’s classic Trump to push boundaries that nobody ever had the audacity to push before. But couple the NARA suit with Bannon’s contempt indictment and the continuing intransigence of the Big Lie becomes downright frightening. Recall that in August 2017, Bannon was fired from his White House position as chief strategist after he was quoted in a book criticizing Trump’s children. “Steve Bannon has nothing to do with me or my presidency,” Trump said about his decision to banish him.

More than two years later, however, and only hours before he left office, Trump abruptly granted Bannon a full pardon on “charges related to fraud stemming from his involvement in a political project.” The press statement added that “Mr. Bannon has been an important leader in the conservative movement and is known for his political acumen.” Something evidently shifted between these two men.

Predictably for Bannon and others within Trump’s sphere, the House January 6th Committee subpoenaed Bannon in September for testimony and documents. Bannon blew off the committee, citing executive privilege, even though he was no longer in the White House in January 2021. Although his status as a private citizen is not necessarily dispositive for purposes of executive privilege, Bannon’s claim is extraordinarily weak as a matter of law, rendering his failure to follow basic legal protocol in responding to the subpoena all the more brazen.

The way “privilege” is raised in the law—whether it be the ubiquitous attorney-client privilege or the more exotic executive privilege—is to produce a witness in response to a subpoena or deposition request and, as counsel, instruct a witness not to answer particular questions that call for privileged information. For document requests, the way it works is that a written response is provided that formally invokes the privilege and, if the parties cannot work out a compromise, to create what’s called a “privilege log” that generically identifies the allegedly privileged documents one-by-one and articulates with some legal and factual specificity what the grounds for the privilege actually are.

So for example, if Bannon showed up and was asked by the committee whether he spoke with Donald Trump on January 5, a yes or no response would normally have to be given as the question doesn’t call for privileged information. If the committee went on to ask “What did you discuss?” Bannon would likewise have to answer if the information had nothing to do with Trump’s role as president, such as, say, what he had for lunch that day. To the extent the response called for more specific information relating to Trump’s role as president, Bannon’s lawyer normally would object, tell him not to answer, and a round of legal briefs would ensue around the scope of the privilege. A judge would ultimately decide whether the privilege claim was valid, and thus whether the testimony or documents must be produced.

The political message Bannon is sending through his defiance is clear: Congress is not legitimate, Biden is not legitimate, and the legal process is not legitimate. After making his first court appearance on the indictment, Bannon said outside the courthouse on Monday that he is “taking on the Biden regime” and “going on the offense.” His lawyer, David Schoen (who was one of Trump’s two, exceedingly clumsy defense lawyers during the second impeachment trial), told reporters: “When the privilege has been invoked by the purported holder of privilege, he has no choice but to withhold the documents.” Translation: Trump—now a layperson—is more authoritative than Congress and President Biden combined, so Bannon has no choice but to snub them in tandem.

Schoen’s failure to honor standard legal practice and produce the witness for purposes of formally invoking the privilege is not only unethical, it’s corrosive. Like an infection that enters the bloodstream but triggers a chain reaction throughout the body, if left untreated, it can rapidly lead to tissue damage, organ failure, and ultimately death. (According to the CDC, this condition—sepsis—kills over 250,000 Americans per year.) For American democracy, of course, the infection took hold before the Trump years but it spread rapidly throughout the executive branch during his tenure—taking hold in the State Department with Mike Pompeo and in the Justice Department with Bill Barr, among many others. The infection continued to spread even after Trump’s defeat in last year’s election. With the Big Lie, it spread among Republicans in Congress, ultimately infecting the Capitol building itself on January 6.

Our political-legal system has allowed the Big Lie to take hold to the point where the rule of law and the threat of criminal jailtime don’t seem to matter to its carriers and their lawyers who take an oath to uphold the Constitution.

If American democracy is to be saved, it might be time for Attorney General Merrick Garland and Democrats in Congress to stop playing by the old rules, which don’t seem to apply anymore anyway.

Kimberly Wehle

Kimberly Wehle is a contributor to The Bulwark. She served as an assistant U.S. attorney and an associate independent counsel in the Whitewater investigation. She is currently a professor at the University of Baltimore School of Law. An ABC News legal contributor, she is the author of three books with HarperCollins: How to Read the Constitution—and Why, What You Need to Know About Voting—and Why, and, most recently, How to Think Like a Lawyer and Why—A Common-Sense Guide to Everyday Dilemmas. Her new book, Pardon Power: How the Pardon System Works—and Why, is forthcoming in September 2024 from Woodhall Press. @kimwehle.