Even though he’s been out of office for over seven months now, former President Donald Trump continues to claim that “executive privilege” provides blanket protection for him from any and all investigations being conducted regarding his actions while still president, most notably his actions on January 6, 2020, when he may have helped touch off the insurrection that took place at the U.S. Capitol.
But attorney Teri Kanefield warns in an article she wrote for JustSecurity that any lawsuit Trump might file to claim executive privilege could well “backfire” on him in a way that would leave him even more vulnerable to criminal prosecution.
To begin with Kanefield notes, executive privilege belongs to the sitting president and administration:
“While the law surrounding executive privilege is unclear and hotly contested, it’s generally accepted that the privilege is held by the sitting president — and the Biden Administration has already said it will not assert executive privilege when it comes to at least a subset of matters under the committee’s purview. It’s unlikely, therefore, that such a lawsuit would survive a motion to dismiss — particularly because courts may also simply avoid inserting themselves into executive privilege disputes.”
But perhaps the biggest threat from an executive privilege claim lies in what’s know as the “crime-fraud” exception, which could open up a Pandora’s box of trouble for Trump:
“Such a lawsuit would raise the issue of whether the crime-fraud exception applies to the claim of executive privilege, in the way that exception applies to the attorney-client privilege. This, in turn, could prompt the court to find that the documents sought by the select committee contain evidence of criminal wrongdoing or other illegal conduct on the part of Trump and his associates.
“This possibility is particularly treacherous for Trump because of the prospect of the Department of Justice and White House Counsel weighing in against him on this question of law and fact.”
In other words, if Trump files suit, it could result in him being more likely to face criminal charges from the Justice Department, which is already looking at the Jan. 6 insurrection.
Additionally, it has already been determined that Trump was acting outside his official duties on Jan. 6 and was instead engaged in a campaign event:
“The Stop the Steal rally has already been classified by the Department of Justice as a campaign event, and as such, bears no responsibility to the president’s duties of office. Should the demanded materials contain evidence that Trump or members of his inner circle intended the rioters to disrupt the counting of electoral votes, Trump’s response to the riot also speaks to his intentions in sending his supporters to the Capitol.”
That would make Trump a co-conspirator in crimes committed on that fateful January day at the Capitol. And that means he could be criminally charged as such.
All of this leads Kanefield to conclude:
“Thus, should Trump bring a lawsuit seeking to ‘protect’ executive privilege, the lawsuit could quite easily backfire. Of course, the court may well rest on one of the other long-settled exceptions to executive privilege. But Trump’s lawsuit could also trigger a finding from a court, and perhaps force the Justice Department to take a position too, that the materials sought by the select committee contain evidence of criminal behavior.”
Trump has long been know for wanting to litigate everything, no matter the issue. But in this case, his fondness for using the courts could come back and bite him squarely on the ass. It could also send him to prison as a seditionist.