Donald Trump can win the January 6 fight even if he loses the legal battle

From his fake Resolute Desk at Mar-a-Lago, former President Donald Trump can still use a ball to destroy the congressional investigation into the uprising — even if he loses the ongoing battle in the nation’s highest courts.

Lawyers widely expect Trump to actually fail in his attempt to assert “residual” executive privilege to keep accursed documents shielded from the public. House committee investigate January 6 uprising. But constitutional scholars warn that judges seem willing to leave him a small loophole that could seriously delay Congressional investigators and provide resistance witnesses with legal ammunition. in their court battles.

Potential delays are even more important now that tight-lipped Trump loyalists are stacking up, with news in recent days that the former White House Chief of Staff Mark Meadows and Former Assistant Attorney General Jeff Clark has set himself on the path of martyrdom “contempt of Congress” like Steve Bannon for relying on the specter of Trump’s executive privilege to defying subpoenas and refusing to testify.

Legal scholars told The Daily Beast the fate of all of their cases essentially depends on what happens in the power struggle that has rocked Trump’s Republic.

Any day now, a three-judge appellate panel in the District of Columbia is set up to decide whether Trump’s claims of out-of-office powers are warranted. But if the judges do what they usually do – create a legal “test” that can be applied in future cases – they will give Trump and his loyal lieutenants a flag. pear could be thrown at the commission’s motives, said attorney Kel McClanahan.

“They seemed to want to create a balance test,” he told The Daily Beast. “It will allow Trump to keep filing these lawsuits and keep delaying, delaying, delaying — all because the circuit may not say there’s no way any of the former presidents can win. “.

McClanahan, a lawyer specializing in national security matters, is not part of the lawsuit but has filed legal filings in favor of the committee and against Trump.

“If it weren’t closed now, it would have been in Bannon’s contempt trial, which was intended to substantiate testimony,” he said. “It would prevent Biden from getting the information himself.”

The bipartisan selection committee wants to determine the Trump administration’s role in sparking the January 6 uprising. When President Joe Biden broke with tradition and approved the early release of administration files earlier from National Archives, Trump sued in October to block the sending of hundreds of pages of emails, notes, call logs, and visitors.

The main premise of the case is that a former president who retains executive privileges can override the executive powers of the current president.

Trump has lost The first round in federal district court was held on November 9, when Judge Tanya S. Chutkan wrote that the former president’s case “appears to have been initiated based on the view that his executive power” exists. forever. “But the President is not the king, and the Plaintiff is not the President.”

On November 30, a panel of federal appellate judges listened to opposing arguments, largely agreeing with the Justice Department and leaving their most scathing, questionable comments to the attorneys general. of Trump.

But constitutional experts tracking the case found that the judges refused to simply shut down Trump’s attempt to wield power from outside the White House, suggesting a desire to create some sort of standard. binding legal standards.

During the appeals court last week, Judge Robert L. Wilkins asked, “We don’t just flip a coin or pull out a straw or something. What test do we have to use? ”

Meanwhile, another member of the judicial panel, Patricia A. Millett, made it clear that the judges will weigh in on this case as she said, “It can’t be that we all go to court and we go, ‘The incumbent president wins. Thank you for playing.'”

But letting the judges create any kind of test is exactly what Trump’s lawyers are trying to do here.

A test that will simultaneously strengthen the legal challenge posed by Bannon in his ongoing criminal case, said Jonathan David Shaub, a law professor at the University of Kentucky who specializes in presidential powers. newspaper.

“Trump is definitely claiming this power of no definite origin,” Shaub said. “If the court goes down the route of having the judges decide which claims are valid, then Bannon has a much better argument that he doesn’t need to comply until the court decides whose claims are valid. more feasible. It gives credence to this idea that there are some questions about who has the authority to allow Bannon or Meadows to testify. “

If a legitimate test exists, then Bannon, Clark, Meadow and anyone else who claims Trump has the right to remain silent can ask the judge to conduct an examination to see if their individual case meets the new standard — a legal game that can run simultaneously. lake until the 2022 election and perhaps the end of the Democratic-led committee.

“It is a potential danger. Mark J. Rozell, a political scientist at George Mason University, said: It could set a precedent that would allow others who are the subject of testimony … to claim that a standard has been established. set and it applies to them.

“There is a certain bravery and ingenuity in these men that they seem to eat away at, and that makes me feel deeply narcissistic. They don’t care what makes sense for the broader system. It’s unlike anything I’ve seen before,” said Rozell.

To replace? Ask the examiner to just say no.

“If the judges say that this is the acting presidency that belongs to the current president, then… Bannon and Meadows have far fewer requests,” Shaub said.

Either way, Trump’s case against the committee’s chairman, Rep. Bennie G. Thompson, won’t end here. Whoever loses the case will appeal to a higher court. Attorneys who spoke to The Daily Beast said they hope Trump will slow the case down by asking the entire District of Columbia appeals court to reheat the case, then ultimately to the Supreme Court.

The former president’s office did not respond to a request for comment. So did his lawyers in the case. Trump is being represented on the appeals court by Jesse R. Binnall, who helped him Conspiracy-filled ‘Stop the Steal’ legal challenge Nevada election results and Justin Clark, a former campaign attorney who allegedly called Rudy Giuliani a “bastard” through his bogus legal manipulations to overturn Election 2020.

The January 6 committee did not respond to questions about potential concerns about whether Trump’s lawsuit could delay their work.

While all three judges on the D.C. panel are appointed by Democratic presidents, the person who seemed most disgruntled when considering Trump’s arguments was Judge Ketanji Brown Jackson, who was on appeals by the appeals court. Biden’s first selection. Notably, she presided over a similar case in 2019, when she refuted Trump’s claim of “absolute immunity” to keep then-White House Counsel. Don McGahn from testifying before Congress about Russian interference in the 2016 election. In her decision, she noted, “The president is not the king. ”

Rozell, who serves as dean of the George Mason University school of public policy, said judges should be careful not to play right into Trump’s hands.

“Trump himself doesn’t really care about institutional privileges. He’s just looking for an end result for what he wants. Trump is playing a game here, trying to delay it as much as possible, and trying to make it as costly as possible.”

If he can run out of time long enough, Rozell added, a Republican-led committee could drop the investigation altogether.

“Many of us doubt this is the game being played here,” he said.