, in which a mob of Donald Trump supporters attacked America’s Capitol, requested documents relating to that incident from the National Archives and Records Administration, the federal agency charged with safeguarding government records. Donald Trump sued, asserting executive privilege over nearly half of the 1,600 pages of documents being sought by the committee, even though the current president, Joe Biden, made no such assertion. On November 9th, a federal judge rejected Mr Trump’s suit.
Precisely what sorts of communication can be withheld has long been subject to debate: unsurprisingly, the executive has tended to take an expansive view of privilege, which the other two branches have contested. Often these arguments were resolved through negotiation rather than legal wrangling, because the parties involved understood executive-privilege questions as more political than legal.
Subsequent federal courts have found that executive privilege applies to “direct decision-making by the president,” but that it can be overcome by showing that “the subpoenaed materials contain important evidence...not available with due diligence elsewhere,” and that a privilege claim cannot provide absolute immunity from congressional subpoenas .
Even by the historically maximal approaches of previous presidents, the claims of privilege emanating from Mr Trump and his circle are extraordinary. For instance, Steve Bannon, a former adviser to Mr Trump, has defied a congressional subpoena, claiming that Mr Trump’s claim of privilege bars him from honouring it—even though he was not a government employee in the run-up to January 6th.
The ruling on November 9th holds that they are not. An appellate court could overturn it, but that would have unwelcome implications: it would reduce the power of a sitting president in favour of a former one, over materials that have not traditionally been covered by privilege anyway. But that may be beside the point. Mr Trump and his circle do not have to win in court.
But when the President is attempting a coup to overthrow a constitutional elected government, such privilege should not be allowed by the Courts. See Nixon
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