One of the central lessons of the Donald Trump era in national politics has been that American institutions were unprepared to deal with a candidate and president that had little interest in tradition or norms — to say nothing of accuracy or consistency. Effective governance often depends on handshake agreements and politicians’ lingering insecurity about having to face voters every few years. Trump had no such shame and no foundation rooted in political dealmaking. D.C. repeatedly discovered that it therefore had few effective tools for holding him accountable.
Congressional investigations? Delay and obstruct. Impeachments? Let Senate Republicans upend it. Election loss? Pretend it didn’t happen. Granted, that last one didn’t take, but you get the point.
The final effort to institute some accountability on Trump’s presidency centers on that last point. The House committee investigating the riot at the U.S. Capitol on Jan. 6 must necessarily figure out how Trump’s false insistences about the election being stolen spurred individuals and organizations to arrive in D.C. on that day and to eventually overrun the building. It must also consider the less-clear question of how Trump or his allies might have been directly involved in the day’s events, scheduled and unscheduled.
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But, unfortunately, the same constraint applies: Congress is limited by what Congress can do and by its own sense of how it should do it.
At the moment, the committee is preparing to hold former Trump adviser Stephen K. Bannon in contempt for failing to provide testimony following a subpoena. Members of the committee are presenting this as an act of unusual ferocity.
Bannon “needs to cooperate because we’re not fooling around, and we will refer him for prosecution, and we will expect the Justice Department to do so,” Rep. Adam B. Schiff (D-Calif.) said on CNN’s “Newsroom” on Sunday. “We’ll present it to the grand jury.”
“We’re going after him,” he told Stephen Colbert, to applause.
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He said something similar on Twitter (“We’re not messing around here.”) … five days ago. That it took 11 days between Bannon’s rejection of the subpoena through a letter from his attorney on Oct. 8 to Tuesday’s contempt vote seems to undercut the Associated Press’s framing of this as the panel “moving swiftly” to hold Bannon accountable. The panel had to send Bannon’s lawyer a letter back first, and then there was a weekend and such and now here we are. There’s a clock ticking here; if the committee’s work isn’t done by January 2023 and Republicans retake the House, the whole thing would almost certainly be shut down.
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This is ungenerous in a few ways. The committee needs to ensure it can win any legal challenge and Congress progressing deliberately (often a nice way of saying “slowly”) is not a new development. But it does belie the idea that the process is being handled with unusual fervor. Moving slowly gives an advantage to Trump and his allies and the panel is, by any non-congressional standard, moving slowly.
The better representation of how Trump’s side is asymmetrically battling the committee is the rationale Bannon has offered for refusing to provide testimony. In his Oct. 8 letter to the committee, his lawyer argued that Bannon couldn’t appear because Trump had demanded that his allies not comply, citing the standard of “executive privilege.” Bannon’s lawyer told the committee that “we must accept his direction.”
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Nearly everyone involved in this (possibly including Bannon’s attorney) agrees that Bannon has no valid claim to privilege. Executive privilege, as we’ve explained before, is a concept created by the Supreme Court to establish that some communications between a president and his advisers could be off-limits from investigation. The idea was that high-level discussions might include sensitive subjects that should not simply be able to be presented as part of legal proceedings. It’s not an absolute right even for a sitting president; claims are evaluated by courts and are largely situational.
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What executive privilege is not understood to cover is discussions between presidents and former staff. Particularly since the privilege lies with the White House; it’s generally understood to be the sitting president to decide what should and shouldn’t be protected. (Republicans have argued that this is murky, but a 1977 Supreme Court case rejected an attempt by former president Richard Nixon to invoke privilege.) In that case, it’s President Biden who can invoke privilege at this moment — and his team has already declined to do so to protect documents sought by the committee.
Here, we’ve fallen deep into another crevasse between Congress’s power and the truth. Trump started making dubious claims of privilege even while he was president, relying on the uncertainty of legal precedent to give him breathing room to drag his feet. It’s hard to argue that Trump’s invocation of privilege here is aimed at protecting the institution of the presidency instead of his own behavior as president. But Trump and Bannon understand that claims of privilege are a way to make the committee’s job harder, so they make the claims.
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That Biden rejected the initial privilege claim for documents has spurred a separate lawsuit from Trump. On Monday, his team sued to block the release of documents from government agencies subpoenaed by the Jan. 6 committee.
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“The Committee’s request amounts to nothing less than a vexatious, illegal fishing expedition openly endorsed by Biden and designed to unconstitutionally investigate President Trump and his administration,” the lawsuit states. “Our laws do not permit such an impulsive, egregious action against a former president and his close advisors.”
This, we’ve also seen before: Trump making wild claims about bias and being unfairly targeted as a way of amplifying his victimhood and making his critics’ jobs more painful. But, again, there’s another reason for the suit. Speaking to The Washington Post, New York University law professor Stephen Gillers described the suit as “a naked effort to delay the work of the Jan. 6 committee until the 2022 election.” Slow it down, wait it out.
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There is no reason to grant either Trump or Bannon the assumption that they are offering their privilege claims in good faith. At issue is understanding the genesis of a historic event that was indisputably indirectly driven by Trump’s rhetoric and indisputably directly driven by Trump’s allies. The question of Trump’s role is an unanswered one that is clearly important moving forward, as Trump talks about running again in 2024.
But in the battle between American institutions and Trump, the former has repeatedly proved to be mostly impotent.