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Two-party group of former lawmakers sues Trump’s claim of executive privilege

For nearly four decades, Trump’s survival depended on secrecy; he rarely met anyone he did not need to sign a non-disclosure agreement. Now a two-party group of former lawmakers wants the court to know that Trump’s claim to executive privilege should not apply to possible secrets regarding Trump’s role in his attempt to overthrow the 2020 election.

It is true that certain privileges exist within the United States executive branch, but they are not impenetrable and often depend on the nature of the claim. Does it involve internal policy discussions? Possible strategies to initiate executive action? International diplomacy and strategies? A president is on much safer ground to claim any of the above as the basis for the privilege. All privileges exist to promote communication that is deemed to promote public values.

But no privilege, not lawyer-client, not doctor-patient, man-woman, or even an allegation of executive privilege applies to communications used to promote a crime. The suspicion that documents and evidence could reveal evidence of criminal activity within the Trump administration gave a powerful group a powerful slap on Trump’s wall of secrecy yesterday. According to Politics:

Sixty-six former lawmakers, including two dozen Republicans, have signed on to a legal order requesting a federal judge over former President Donald Trump’s attempt to stop Jan. 6 investigators from rejecting access to his White House records.

The short, which is expected to hit the dossier in the DC federal district court on Friday, argues that no possible argument about executive privilege could overcome Congress’s need for documents to investigate the violent attack on the Capitol – one fueled by Trump’s false allegation that the 2020 election was stolen.

The Court is under no obligation to consider the order as it comes from a non-party. But given that it was filed by a powerful and wide-ranging group, the order will almost certainly attract the court’s attention.

Executive privilege is a bit of a difficult area because most issues (pre-Trump) have been resolved privately between Congress and the White House. There is not much definitive case law. Many speculate that the lack of court leadership is due to the fact that both parties are afraid of the possible answers.

The command is also more powerful than the typical third-party command because judges do not live in a vacuum, unaware of national politics or events. The judge (and upcoming appeals judges) surely know that the current Republican lawmakers are under tremendous pressure to support Trump in the case. But former lawmakers have the freedom to say, “We as former lawmakers know that Congress deserves the right to demand these documents.”

Of course, there is still no evidence that Trump played any direct role in the uprising, or that Trump’s need for secrecy is based on the fear that direct or circumstantial evidence exists. What is well known is that Trump’s wild survival ability has always been based on a stronghold of secrecy. The bridge to this one might crumble. And God alone knows what may lie behind.
**** and on Twitter @JasonMiciak

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