Jurisprudence

Tuesday Was the Best Day for American Democracy in Months

Meadows cheering in sunglasses.
Former White House chief of staff Mark Meadows. Mark Makela/Getty Images

Tuesday was the best day the House Select Committee to Investigate the Jan. 6 Attack has had since it launched in July. The committee achieved visible progress on multiple fronts: It secured critical cooperation from one of Donald Trump’s former top aides, and there was movement in a court case that could speed along the delivery of critical documents from the National Archives. The cherry on top was the news that one of the highest-profile attorneys who pushed lawsuits aimed at overturning the 2020 election for Trump is under grand jury investigation.

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Taken together, it means the legal and political community might actually do something about former President Donald Trump’s efforts to steal the last election. The idea is all the more remarkable when considering that past efforts to hold Trump accountable were regularly stymied by his own obstructive Department of Justice or slow-moving federal courts, and even by Attorney General Merrick Garland’s hypercautious approach to his job.

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What exactly happened on Tuesday that was so great?

First, it was reported that former White House chief of staff Mark Meadows was tentatively cooperating with the committee. Meadows had been holding out for weeks from providing documents and testimony, but a couple of things may have convinced him to cooperate: First, on Monday, the committee threatened to file criminal contempt charges against a former Department of Justice official, Jeffrey Clark, who appeared before the committee earlier this month but, according to CNN, refused to answer any questions. Clark is being questioned because, according to documents and testimony, he tried to convince Trump to fire his bosses as part of a plot to use the DOJ to falsely declare fraud in the election. (The committee is still scheduled to hold a contempt vote against Clark on Wednesday.) Likely further motivating Meadows was Garland’s decision earlier this month to prosecute former Trump confidant Steve Bannon for contempt of Congress. Both situations suggest that if the committee’s requests aren’t taken seriously, there will be criminal consequences.

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“Mr. Meadows has been engaging with the select committee through his attorney,” committee co-chair Bennie Thompson said in a statement. “He has produced records to the committee and will soon appear for an initial deposition.”

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Thompson indicated that Meadows’ level of cooperation and what possible next steps the committee might take would be reevaluated when he actually testifies.

“The committee will continue to assess his degree of compliance with our subpoena after the deposition,” Thompson said.

Meadows’ turning over documents and agreeing at least to talk about areas where there is no plausible claim of executive privilege is major progress for the committee, which has been repeatedly stymied by former officials refusing to cooperate on vague assertions of general privilege. It also comes on the heels of last week’s news that former New York City Police Commissioner Bernard Kerik, another Trump confidante during the days leading up to Jan. 6, will cooperate with the committee. And it follows the committee sending another wave of subpoenas to groups linked to the assault on the Capitol, including members of the Proud Boys and the Oath Keepers.

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Further, a three-judge panel of the U.S. Court of Appeals for the District of Columbia Circuit heard arguments on Tuesday in Trump’s lawsuit attempting to block the committee from accessing documents related to Jan. 6 held by the National Archives. The hearing came on the heels of the relatively swift decision earlier this month by District Judge Tanya S. Chutkan to refuse to grant Trump an injunction to block the archives from releasing the documents. And now, Circuit Judges Patricia Millett, Ketanji Brown Jackson, and Robert L. Wilkins—all Obama or Biden appointees—have set a lightning-quick schedule in the case.

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While the judges questioned the House counsel about the circumstances under which a former president should be allowed to block access to confidential documents, they seemed clearly to lean toward granting deference to both the House’s request and to current President Joe Biden, who has said he would waive executive privilege as it pertains to most of the documents.

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“This all boils down to who decides? Who decides when it’s in the best interest of the United States to disclose presidential records,” Jackson explained from the bench. “Is it the current occupant of the White House, or the former who does have some interest in the confidentiality of the documents?”

Jackson then pressed Trump’s attorney, Justin Clark, on what other circumstance might cause a set of judges to side with the former president over the current president on a question of presidential discretion on issues of national security.

“Is there a circumstance in which the former president ever gets to make this call and why would he?” Jackson wondered. Clark had no real answer.

The other judges on the panel were similarly skeptical of Trump’s case, pointing to the 1977 case, Nixon v. Administrator of General Services, in which the Supreme Court ruled that greater deference should be given to a sitting president than a former one when it comes to conflicts over document release.

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“We have one president at a time under our Constitution, that’s what GSA is saying,” Millett offered. “Nixon v. GSA says the incumbent’s [decision] carries more weight.”

Clark acknowledged that under the GSA precedent, deference is due to the current president, but argued that “there are other possibilities that the court could weigh,” such as whether there is a national security interest the former president is seeking to protect that is being neglected by the current administration.

Both Millett and Jackson then noted that Trump’s attorney had never asserted any specific reason to keep any specific document privileged that the court might be able to weigh if it decided deference was not due the current president.

Here Clark stumbled, acknowledging that his main interest was in keeping the former president from looking bad: “If we look at a document and it’s going to be an embarrassment to a former president, if it’s meant to cause political turmoil,” Clark argued, the court could prevent it from seeing the light of day.

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None of this bodes well for Trump’s effort to block these documents, and the judges repeatedly acknowledged the need for expediency in the case, which means we could have their ruling very soon.

Finally, news broke that attorney Sidney Powell was under grand jury investigation for the fundraising organization she set up to help contest the election on behalf of Trump. Powell’s deepening legal situation, while not directly related to the Jan. 6 probe, points to the Justice Department’s apparently increasing willingness to hold responsible those who pushed the nation to the brink of insurrection that day.

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