On Wednesday, August 26, the House Select Committee investigating the January 6th attack on the Capitol demanded that various federal agencies hand over documents related to its investigation. The requests target, among other things, communications involving then-president Trump, his close associates (such as Roger Stone), as well as members of Congress and congressional staff, and many others.

Trump responded with an announcement that he will “defend” executive privilege over these records. The implication is that he will file a lawsuit in Washington, D.C. seeking an injunction to prevent executive branch records from being turned over to the select committee. Were he to sue, it could backfire on him – producing a decision by a federal court, and perhaps by the Justice Department as well, that the documents likely contain evidence of criminal conduct involving his actions on and before January 6.

Such a lawsuit could backfire—if the lawsuit even gets that far. 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 (See, e.g. United States v. AT&T, 551 F.2d 384, 385 (D.C. Cir. 1976) and United States v. House of Representatives 556 F. Supp. 150, 153 (D.D.C. 1983); but see Comm. on Oversight & Gov’t Reform v. Holder, 979 F. Supp. 2d 1 (D.D.C. 2013); Comm. on the Judiciary v. Miers, 558 F. Supp. 2d 53 (D.D.C. 2008)).

Even if a court entertained the idea that a former president can invoke executive privilege (see Jonathan Shaub’s analysis on that topic), it would most likely reject the claim under one of the exceptions that have already been carved by courts. Following the ruling in Nixon v. Sirica, a case concerning the extent of executive privilege in the context of grand jury proceedings, a court could reject Trump’s claim on the grounds that the committee has made a “compelling showing of need.”

In another of the Nixon cases, Senate Select Committee v. Nixon, the court found that the needs of the Senate Select Committee did not outweigh the executive branch confidentiality needs because the House JudiciaryCommittee, which had begun impeachment proceedings, already had access to the tapes. The court found, “Against the claim of privilege, the only oversight interest that the Select Committee can currently assert is that of having these particular conversations scrutinized simultaneously by two committees. We have been shown no evidence indicating that Congress itself attaches any particular value to this interest.”

At the same time, the court noted, “It is true, of course, that the Executive cannot, any more than other branches of government, invoke a general confidentiality privilege to shield its officials and employees by the proper government institutions into possible criminal wrongdoing.” In that case, however, the Judiciary Committee investigating the wrongdoing while the “legislative committee” was considering legislation, so the court found that the request of the select committee was “merely cumulative.”

A court weighing a possible claim from Trump of executive privilege can also follow the explanation offered by the Supreme Court in Nixon v. Fitzgerald and find that the communication sought by the select committee is not privileged because it was not “‘in performance of [a President’s] responsibilities’ ‘of his office’ and made ‘in the process of shaping policies and decisions.’”

Trump isn’t afraid to file lawsuits that are destined to lose—if he thinks such a lawsuit will buy him time.

There is, however, another reason Trump would be wise not to litigate the executive privilege question in this case. 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.

Executive Privilege and a Crime Fraud Exception

While no court has yet specifically carved out a crime-fraud exception to executive privilege, courts have come close. The Supreme Court, in U.S. v. Nixon, explained that executive privilege is “limited to communications ‘in performance of [a President’s] responsibilities,’ ‘of his office,’ and made ‘in the process of shaping policies and making decisions.’” The Court accordingly established that executive privilege does not extend to purely political communications or communication that covers or concerns a crime (see also analysis by Harold Koh et al). But specifics, including procedures, have not been established.

The Second Circuit’s 1982 decision in United States v. Myers suggests that government officials cannot hide criminal behavior behind a privilege implied by the Constitution. Frank Thompson, Jr., a congressman was caught on tape accepting bribes. He sought to suppress the tapes on the ground that they were protected by the Separation of Powers doctrine. He also claimed the Constitution’s Speech or Debate Clause precluded the introduction of evidence from a private conversation he had with a fellow congressman on the floor of the House. The court rejected his claims, finding that, because the tapes and conversation contained material evidence of criminal violations, they were not immunized by the circumstance that Thompson was a congressman at the time the communications occurred. It’s not a large step from the reasoning in this decision to applying the crime-fraud exception to executive privilege—another privilege implied by the Constitution (see Koh et al’s analysis of Myers as well).

As Anthony Wasef argued in a Cornell Law Review note, recognizing a specific crime-fraud exception and procedures would facilitate oversight of the executive branch when the executive branch behaves unlawfully. A specific crime fraud exception to executive privilege would presumably function like the crime-fraud exception to attorney-client privilege outlined in United States v. Zolin: The congressional committees seeking the records would be required to make a “showing of a factual basis adequate to support a good faith belief by a reasonable person,” that in camera review of the materials find evidence of such malfeasance, the material would be released to the committee for use in its investigation.

The Evidence Sought by the Select Committee is Likely to Show Criminal or Illegal Activity

Given the evidence already available to the public, the documents sought by the select committee are highly likely to contain evidence of criminal wrongdoing or unlawful conduct . In particular, the documents are sufficiently likely to show that Trump or members of his inner circle induced or procured (18 U.S.C. 2) Trump supporters to obstruct an official proceeding in violation of (18 U.S.C. 1505) by engaging in “disorderly conduct in a restricted building” (18 U.S.C. 1752). Indeed prosecutors thus far—when indicting insurrectionists—have frequently brought the latter two charges. Four separate lawsuits brought by Capitol Police Officers and by members of Congress accumulate much of the reported evidence that points in this direction.

Indeed, there’s  a considerable amount of publicly available information supporting an allegation that Trump and members of his inner circle intended the rallygoers to impede or delay the counting of electoral votes and certification of the election. To take just a few examples, the rally was timed well in advance to coincide with the counting of the electoral votes. The rally ended at 1:10. Trump pointed the rallygoers toward the Capitol. The official proceedings began at 1:30. The rally was called “Stop the Steal” where the steal clearly referred to calling the election for Biden. During the midst of the rioters storming the building, Trump’s personal attorney Rudy Giuliani left a voicemail for at least one Senator asking him to delay the proceedings, “to just slow it down” “so that we get ourselves into tomorrow ideally until the end of tomorrow.”

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.

The evidence sought by the select committee includes all communications concerning the planning of the rally, Trump’s various attempts to delay or prevent the counting of the electoral votes, and what Trump discussed with those around him as the violence was unfolding. Thus, many of the documents sought by the select committee are intended to provide evidence to answer such questions as:

  • Did Trump and those planning the Stop The Steal rally intend for the rallygoers to impede the counting of the electoral votes?
  • Did Trump and those planning the Stop The Steal rally believe the rallygoers would impede the counting of the electoral votes?
  • Did Trump and those conducting the rally know or believe that the rallygoers would engage in disorderly conduct once they arrived at the Capitol?
  • Did Trump refuse to call off the rioters after violence erupted?
  • Did Trump indeed cheer the violence, as has been reported?

Note: all that is needed, under 18 U.S.C. 1505 or 1752, is to show that Trump intended the rallygoers to disrupt the proceedings of Congress and that he knew, given the nature of the crowd, that they would resort to unruly behavior to accomplish this. He would then be responsible for the natural and probable consequences of such a disturbance. It is not necessary to show that he intended violence or had a goal as sweeping as overthrowing the government.

Should Trump invoke executive privilege and get as far as a hearing a judge may demand an in camera review of the materials in consideration under the crime fraud exception. Senate majority leader Mitch McConnell has given a preview of the path a judge is likely to take if she looks under that heading. After hearing all of the evidence presented at Trump’s second impeachment and awareness of other events that day, McConnell announced that Trump was “morally and practically responsible” for the insurrection. “President Trump is still liable for everything he did while in office,” McConnell continued. “He didn’t get away with anything yet. We have a criminal justice system in this country. We have civil litigation.” At the very least, the evidence already available strongly indicates that Trump intended the rallygoers to disrupt the counting of the electoral votes by means of disorderly conduct.

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.


Photo credit: Andrew Burton/Getty Images – August 17, 2015