Jan. 6, executive privilege, and the rule of law – Martha’s Vineyard Times

The Jan. 6 insurrection in Washington, D.C., leaving five dead and more than 140 injured, was an attack not only on a building, but on the United States. It was an assault on American democracy, a rejection of the rule of law, when its perpetrators attempted to halt the final electoral count of the 2020 presidential election.

Some observers argue that President Trumps supporters stormed the Capitol at his behest, and now a bipartisan congressional select committee is investigating how the event was planned, who was involved, and whether new legislation should be enacted to forestall a future attack.

Select committee members need to hear testimony and review documents preceding the event to properly do their work. They have asked several former Trump administration officials to supply information about what they knew before and during the attack. They have requested presidential material from the National Archives to learn whether and how the former president played a role in provoking the attack that was designed to keep him in office.

Courts have made clear that congressional committees may obtain information if it furthers a legislative purpose. A nation like ours, based on the rule of law, requires its legislative branch to fulfill its duty for the good of all so, as in this case, it never happens again.

Trump and former administration officials have stonewalled, declining to supply needed evidence of their role in the insurrection by claiming executive privilege. This principle appears nowhere in the Constitution or in law. It is a matter of practice that allows presidents to receive confidential information and advice as they contemplate policy decisions.

But no policy was contemplated on Jan. 6. The goal was to overturn the rule of law, and an election that more than 60 judges and many state officials found to be fair and honest.

While the Supreme Court has recognized executive privilege, the justices have noted that it is neither absolute nor unqualified. The select committee argues that executive privilege does not cover individuals potentially involved in the planning and provoking of the Jan. 6 assault, especially because many were no longer in the administration. The committee has issued subpoenas to at least 20 former members of the Trump administration, demanding they come forward with testimony and documents. Trump himself may soon be on the list.

Congress, like the courts, possesses subpoena power, meaning those who refuse are under penalty of the rule of law. A grand jury indicted one former Trump advisor, Steve Bannon, of criminal contempt for ignoring a subpoena requiring him to appear. He faces felony charges that may lead to imprisonment and/or a hefty fine. Others who refuse to appear, including Trumps former chief of staff, Mark Meadows, may also face prosecution and imprisonment.

The requested information is important in light of a Zogby poll undertaken several weeks after the Capitol riot that concluded 46 percent of those responding believed that the U.S. might be on the verge of a civil war. The respondents included Republicans, Democrats, and independents.

Neoconservative Robert Kagan darkly argued in the Washington Post that we are already in a constitutional crisis. We may experience a reasonable chance over the next three to four years of incidents of mass violence, a breakdown of federal authority, and the division of the country into warring red and blue enclaves.

A September CNN poll found that 78 percent of Republicans do not believe Joe Biden was elected president, and 54 percent believe there is solid evidence of that, despite the fact that no such evidence exists. That view is also deeply connected to support for Trump.

Does this forecast a further breakdown of the rule of law? I used to argue in class that with the glaring exception of the Civil War, Americans are not a revolutionary people. Americans do not change their government through violence and bloodshed. Yet, increasingly, pockets of our fellow citizens decline to accept the integrity of the vote, the outcome of elections, and the peaceful transfer of power as the underpinnings of change.

Does this presage the demise of the American republic, as some have predicted? No, we dont face a civil war. The one lasting from 1860 to 1865 was a sectional conflict between North and South over the abolition of slavery. Todays extremism permeates every state, and does not match the circumstances of the 19th century. Our republic will prevail, but if and only if we still believe in the rule of law.

Jack Fruchtman, who lives in Aquinnah, is updating his history of the U.S. Constitution.

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Jan. 6, executive privilege, and the rule of law - Martha's Vineyard Times