WASHINGTON Almost two years after obstructing Congress while he was president, Donald Trump could get away with it again, this time as the former president trying to block an investigation into the insurgency he instigated .
While Trump – who tried to overthrow American democracy after losing his reelection – has the right to ask his successor Joe Biden to block the release of official documents from his administration, he has gone far beyond ordering his former collaborators not to comply with subpoenas from a House committee requiring both their personal documents and their testimony.
Nonetheless, legal experts said it might be difficult to prove the crime of obstruction in Congress because there is no clear legal precedent and Trump could claim he was claiming “executive privilege” in good faith. .
“This is an unresolved issue in the law,” said J. Michael Luttig, a former federal appeals court judge.
Even Norm Eisen, who worked for the House committee that pursued Trump’s first impeachment and strongly supports treating Trump’s behavior more aggressively, said the ambiguity of the law is “barely colorable enough. so that it is unlikely that he will be prosecuted for obstruction.
Federal law makes a felony punishable by up to five years in prison for obstructing or obstructing formal process, including an investigation by either house of Congress.
Trump spokesman Taylor Budowich denied Trump was filibustering, highlighting phrase “to the fullest extent permitted by law” in letter from Trump’s lawyer to former chief strategist Steve Bannon as proof that Trump was asking Bannon to only do what is legally permitted. . Bannon, in the weeks leading up to Jan.6, hosted a radio show that urged Trump to use that day’s certification ceremony to overturn the election.
The committee subpoenaed Bannon, Trump’s chief of staff Mark Meadows, former Pentagon chief of staff Kash Patel and social media aide Dan Scavino. Meadows and Patel “engage” with the committee, according to the panel. Scavino did not respond to questions from HuffPost, while Bannon’s attorney says he refuses to comply with Trump’s request.
“How does a president have the constitutional privilege of withholding documents that may show his involvement in a violent insurgency and an attempted political coup?” “
– Representative Jamie Raskin (D-Md.)
The Biden White House last week rejected Trump’s request to assert privilege on 47 documents the Jan.6 committee requested from the National Archives. “There is a process in place to assess these issues and we will continue to do so on a case-by-case basis,” a senior White House official said on condition of anonymity. “However, the President has made it clear that he believes it is of the utmost importance for Congress and the American people to have as full an understanding as possible of these events.”
The Jan.6 committee made no official statement regarding Trump’s efforts to prevent his former aides from testifying. Committee member Jamie Raskin, Democrat of Maryland and professor of constitutional law, said Trump’s efforts were far-fetched, given the topic.
“How does a president have the constitutional privilege of withholding documents that may show his involvement in a violent insurgency and an attempted political coup against the government?” Raskin said. “The Supreme Court in executive privilege cases balances the overwhelming public right to know in a democracy against potential national security concerns. Here, the public’s right to know and national security require both disclosure and respect from Congress. There is no argument in favor of the cover-up.
But even if the courts rule against Trump’s efforts to prevent his aides from testifying and handing over documents, suing Trump for obstruction could prove difficult, said Jonathan Shaub, a law professor at the University of Kentucky.
“There is no legal authority establishing Trump’s right to order his former advisers not to comply with committee subpoenas. But there is also no legal authority definitively establishing that he does not have such a right, ”he declared. “Because of this ambiguity and the wide disagreement over executive privilege in general, suing Trump for obstruction would be nearly impossible. “
Trump has also gotten away with unprecedented behavior as president such as encouraging domestic and foreign interests with pre-administration affairs to spend thousands of dollars at his hotel a few blocks from the White House because no specific law prohibits a president from engaging in such obvious activities. Corruption. Previous presidents had adhered to unwritten standards to avoid conflicts of interest and appearances that they were taking advantage of their presidencies.
In 2019, Special Advocate Robert Mueller detailed 10 separate steps Trump took to hamper Mueller’s investigation into the aid the Trump campaign received from Russia, but the House took no action.
Trump was impeached by the House in late 2019 for trying to coerce the Ukrainian president to smear then-Democratic presidential candidate Biden by using $ 391 million in U.S. military aid as leverage, but also for hampering the Congress by ordering all administration employees not to comply with the impeachment inquiry.
“He has publicly and repeatedly rejected the power of Congress to monitor his actions and directly challenged the power of the House to conduct an impeachment inquiry into his actions regarding Ukraine,” the impeachment officials wrote. Bedroom. “No other president has flouted the Constitution and the power of Congress to exercise such oversight.”
The Republican-led Senate, however, refused to remove Trump from office on either count. Some GOP senators have said they believe public shame will teach Trump a lesson.
Trump, however, showed no shame about the episode. He celebrated the Senate’s failure to send him back to the East Room of the White House the next day, and before the year was out, he began plotting to overthrow American democracy in a last ditch effort to stay in power after to have lost his election.
This story, said Laurence Tribe, professor of constitutional law at Harvard, would go a long way in proving the “corrupt intent” that prosecutors should show. “The corrupt and selfish motive of the former president to conceal his role in the attempted coup and the insurgency that followed by invoking an executive privilege which is no longer his should be possible to establish,” he said. said Tribe. “Once that ground is established, there would be a strong case for accusing Trump of meddling in the Jan. 6 Special Committee investigation with criminal obstruction of Congress and justice.”
Raskin has said that no matter how the question of privilege shakes up for Trump, Bannon, who left the White House in mid-2017, can in no way be covered by it. “It’s not even close. Bannon should aspire like a citizen, do his duty and hand over everything he knows about this domestic terrorist attack on Congress, ”Raskin said.
Trump became the first president in 232 years of U.S. elections to refuse to hand over power peacefully to his successor.
He spent weeks attacking the legitimacy of the November 3 contest which he lost, starting his pre-dawn lies on November 4 that he had truly won in a “landslide” and that his victory was “stolen” from him. . These lies have continued through a long line of unsuccessful lawsuits challenging the results in a handful of states.
Trump and some of his advisers have even discussed using the US military by invoking insurgency law or declaring martial law to retain power despite losing the election, including seizing voting machines and by ordering “re-votes” in states narrowly won by Biden.
But military leaders had previously made it clear that they would not get involved in the political process. So after the Electoral College finally voted on December 14, formalizing Biden’s victory, Trump instead turned to an ultimate ploy to pressure his own vice president. overturning the ballots of millions of voters in multiple states that Biden won and declaring Trump the winner in pro forma certification of election results by Congress on Jan.6.
Trump asked his supporters to come to Washington that day, then told the tens of thousands of people who showed up to walk on Capitol Hill to intimidate Mike Pence into doing what Trump wanted.
The mob of supporters he instigated attempted to do just that by storming the building. They even chanted “Hang Mike Pence” after Pence refused to comply with Trump’s demands.
One policeman died after being assaulted during the insurgency, and four others committed suicide in the days and weeks that followed. One of the rioters was shot and killed as she climbed through a broken window into an anteroom containing members of the House still evacuating, and three other people in the crowd died in the melee.
As the House impeached Trump for incitement to attack, all but seven Senate Republicans, led by Kentucky’s Mitch McConnell, chose not to condemn him, leaving Trump to continue his political career even as he faces to several inquiries into his post-election actions.
Trump and his allies are now engaged in a campaign to portray the shot-dead rioter, Ashli Babbitt, as a martyr and the hundreds of others who have been arrested as victims of political persecution. Trump himself continues to suggest that he will run for the 2024 GOP nomination and use his Save America committee money to continue spreading the same lies that resulted in the January 6 violence.