Donald Trump’s extraordinary claim of executive privilege as a former president to prevent any of his aides and agents from testifying before the House select committee to investigate the 6 January attack on the US Capitol rests on the premise that the privilege resides with a president even after he leaves office. Trump is asserting that the position of former president is a recognized constitutional office with permanent rights and privileges. President Joe Biden, the incumbent president who rightfully holds executive privilege, has waived that privilege from covering the relevant documents and potential witnesses Trump wishes to keep secret and silent.
Trump’s allies think they can defy the Capitol attack panel. History suggests otherwise
In the infancy of the Confederacy, Congress formed a committee to investigate – and everyone cooperated
Steve Bannon has been indicted for contempt of Congress. Photograph: Mike Theiler/UPI/Rex/Shutterstock
18 Nov 2021
Standing behind Trump’s supposed shield, a number of those subpoenaed by the committee refuse to cooperate with the investigation. Stephen Bannon, a Trump White House aide early in his term but not during the insurrection, has been cited for criminal contempt and indicted by the Department of Justice. Mark Meadows, Trump’s chief of staff, who was at the center of the plot, and Jeffrey Clark, the former assistant attorney general, who plotted to have states overturn lawful election results on baseless theories of fraud, have refused to cooperate on the grounds of an unspecified legal executive privilege.
The US court of appeals for the DC circuit has granted Trump a temporary administrative injunction against the National Archives from turning over certain subpoenaed documents to the committee, in order to hear full arguments in the case on 30 November. In a prior ruling, however, Judge Tanya S Chutkan stated, “Presidents are not kings, and Plaintiff is not President.”
Trump’s claim of executive privilege is based on his claim that as a former president he retains a “constitutional and statutory right” to protect his “records and communications” under any and all circumstances. His lawyer, in his emergency appeal to stay the disclosure, denies that the House committee has any “legislative purpose” and is merely “a rival political branch” – a rival apparently to a former president, who is implicitly another “political branch” even though he is no longer in office. President Biden, the appeal alleges, is simply a member of “rival political party”, acting on naked partisanship. Release of Trump’s communications in question, far from serving any legitimate government purpose, is designed only to “meet a political objective”.
The attempted coup to overthrow a democratic election seems so astonishing and novel that the filings in the case have failed to come up with any remotely similar situation. But there is a precedent as exact and specific as it could be – and it directly contradicts Trump’s contentions.
In fact, there was a House select committee empaneled to investigate an insurrection. That committee requested the papers of the president, subpoenaed the testimony of his cabinet secretaries and members of his administration, and called for the appearance of senior military officers. No one resisted. No one invoked executive privilege. There were no legal challenges, not a single one. Everyone fully cooperated. The president handed over his records and communications, the cabinet secretaries testified under oath, and the top general forthrightly answered questions.
That insurrection began with the election of Abraham Lincoln on 6 November 1860. In a planned sequence, the federal courthouse, custom house and post offices in South Carolina were seized, and secession of the state from the Union proclaimed. President James Buchanan issued a statement declaring that while secession was illegal he had no constitutional power to prevent it.
Buchanan’s passivity permitted the insurrection to advance. The small garrison of US troops stationed in Charleston was menaced by local militia. Major Robert Anderson removed his troops to the safety of Fort Sumter, located on an island in Charleston Harbor. The other forts and the Charleston arsenal were at once overrun. Soon, six other states in the lower south held elections of delegates to secession conventions, which were marked by the coercion of armed militias. To whip up the secession movement, the southern governors coordinated armed attacks from 3 January to 14 January 1861 on eight federal forts and arsenals, capturing 75,000 weapons.
Washington, surrounded by Maryland and Virginia, where secessionist militias had been organized, was awash in rumors of armed assaults, including on the Capitol, and of Lincoln’s assassination to prevent his inauguration. (Indeed, there would be an assassination attempt on Lincoln’s life as he passed through Baltimore in February.) On the advice of Gen Winfield Scott, Buchanan reluctantly summoned several hundred troops to guard the capital to assure the peaceful transfer of power. The Capitol itself became a veritable army base.
The law has been defied, the Constitution thrust aside, and the government itself assaulted
On 9 January 1861, in the midst of the seizure of federal forts, the House created a select committee to investigate the rolling coup that was under way. The committee demanded and received the internal correspondence of the president. It held extensive hearings and examined witnesses, including cabinet members on far-ranging elements of the subversion, from Buchanan’s dealings with the South Carolina secessionists to “the “alleged hostile organization against the government within the District of Columbia” and the “seizure of forts, arsenals, revenue cutters, and other property of the United States”.
“The law has been defied, the Constitution thrust aside, and the government itself assaulted,” the committee concluded, and rebuked Buchanan for claiming the president is impotent before an attempt “to overthrow the government”. Rather than being helpless before an insurrection, the committee declared that a president must suppress it. “The Constitution makes no provision for releasing any of its officers or agents from the obligations of the oath it requires them to take.” The committee’s report quoted from the oath of office for the president: “The Executive must take care that the laws be faithfully executed.” And it cited from article 1 on the “Powers of Congress” that “Congress shall have the power” to “execute the laws of the Union, suppress insurrections …”
Less than three weeks after the committee report was released, Lincoln was inaugurated, on 4 March 1861. A month later, on 12 April, with the Confederates firing on Fort Sumter, the insurrection crossed into civil war. By the end of war’s first year, Lincoln said in his annual message to the Congress, “It continues to develop that the insurrection is largely, if not exclusively, a war upon the first principle of popular government – the rights of the people.” He cautioned against the clear and present danger of tyranny: “Monarchy itself is sometimes hinted at as a possible refuge from the power of the people. In my present position, I could scarcely be justified were I to omit raising a warning voice against this approach of returning despotism.” Lincoln closed, “The struggle of today, is not altogether for today – it is for a vast future also.”
In ruling whether a former president is entitled to the immunity of a king, the DC court of appeals should be informed by the precedent of the House select committee investigating the insurrection that led to the civil war, its clarion call for the president and other elected officials to uphold their constitutional responsibility to act decisively against the destruction of democracy, and the words and example of Lincoln.
Sidney Blumenthal, former senior adviser to President Bill Clinton and Hillary Clinton, has published three books of a projected five-volume political life of Abraham Lincoln: A Self-Made Man, Wrestling With His Angel and All the Powers of Earth