WASHINGTON ― Donald Trump bankrupted casinos and become the biggest presidential loser since Herbert Hoover, but the Jan. 6 investigation’s move into the courts lets him operate in his one area of proven expertise: using them to stall and delay.
And with the congressional probe almost certain to end if Republicans retake the House next autumn, the former president could well bury details of his attempt to overthrow U.S. democracy by just running out the clock with his lawsuits.
“This is Trump 101, in terms of delaying and grinding out legal actions that affect him,” said Michael Cohen, Trump’s longtime lawyer and “fixer” who served time in federal prison for helping Trump make preelection hush-money payments in 2016 to women who said they’d had affairs with Trump.
Trump sued the National Archives and the House’s Jan. 6 select committee earlier this week, claiming that documents from his administration related to the insurrection are protected by “executive privilege.” His onetime White House aide, Stephen Bannon, meanwhile, is defying a committee subpoena to provide documents and testimony.
“He’s playing for delay,” said Norm Eisen, the top ethics lawyer in Democrat Barack Obama’s White House who later worked on Trump’s first impeachment, who added that neither Trump’s nor Bannon’s legal case is particularly sound.
“Inciting an insurrection is not an executive function, so executive privilege does not apply,” he said. “Bannon’s position is like a bachelor’s degree in stupid, while the Trump position is like a Ph.D. in stupid.”
Trump’s office did not respond to HuffPost’s query. Nor did Bannon.
The full House is set to vote Thursday on a resolution holding Bannon in criminal contempt. That vote would send a request to the Department of Justice to present the case to a grand jury, which could then indict Bannon on the misdemeanor, exposing him to as much as a year behind bars.
“If they make an example out of Bannon, that might reduce the stonewalling from others,” said Michael Steel, a senior aide to former GOP House Speaker John Boehner.
A committee aide, who spoke on condition of anonymity because he was not authorized to make public statements, said the rapid action again Bannon was doing exactly that. “As the contempt process against Mr. Bannon goes forward, we’re grateful that other witnesses appear to understand the potential consequences and are engaging and cooperating with the select committee,” the aide said.
“Inciting an insurrection is not an executive function, so executive privilege does not apply. … Bannon’s position is like a bachelor’s degree in stupid, while the Trump position is like a Ph.D. in stupid.”
– Norm Eisen, top ethics lawyer ini Barack Obama’s White House
But even a fast-track prosecution would likely take months — and each day that passes would bring the Jan. 6 select committee one day closer to its expiration date. If, as appears likely, Republicans retake the House, they will almost certainly end any attempt to investigate Jan. 6 any further.
All but three dozen House Republicans voted down legislation to create an independent Jan. 6 commission, which then died in the Senate because of GOP opposition. So when House Speaker Nancy Pelosi instead created a House select committee, Republican leader Kevin McCarthy wanted it to include Trump allies like Ohio’s Jim Jordan and Indiana’s Jim Banks.
Pelosi rejected all of McCarthy’s picks and instead named two Republicans who voted for the independent commission and have criticized Trump for inciting the insurrection: Wyoming’s Liz Cheney and Illinois’ Adam Kinzinger.
Cheney, though, faces a tough reelection against a Trump-backed opponent, and Kinzinger is in danger of losing his seat to redistricting.
McCarthy, in the meantime, has continued to echo Trump’s claim that the committee is illegitimate. “I don’t view that committee as a real committee since Pelosi’s never let us participate,” he told reporters Wednesday.
Trump, separately, has his own lawsuit designed to block the committee.
In his New York City hometown, Trump was famous for using lawsuits to wear down his business associates into accepting disadvantageous settlements, often counting on them to weigh less-than-agreed-to payments against the time and expenses involved in litigation. As president, he used the office’s “executive privilege” to stonewall Congress’ attempts to investigate his actions. In late 2019, one count of his first impeachment was for obstruction of Congress because of his efforts to stop all administration officials from cooperating with the inquiry into his attempt to extort Ukraine’s president into helping his reelection.
“No one plays the stall game better than Donald Trump. His business strategy was to tie up people seeking payment in court until he wore them down. He’s taken the same tactic with congressional probes,” said David Axelrod, a strategist for Obama’s successful presidential campaigns. “Delay, delay, delay.”
Now out of office, Trump is still resorting to the same playbook with his federal lawsuit, on Monday claiming that he continues to have executive privilege despite the fact that he is no longer in government. He is asking the judge to stop the National Archives from releasing documents to the House committee, even though Biden has refused to assert the privilege on Trump’s behalf, arguing that attempts to subvert the Constitution should not be protected by the Constitution’s executive privilege concept.
Should the judge rule against Trump, he could appeal that to the next level and, ultimately, to the United States Supreme Court.
Eisen said that at that point, the burden of protecting American democracy from Trump and his allies would shift to the federal judiciary.
“Trump and his followers are continuing to broadcast the ‘big lie’ that risks additional violence and unrest. So, it’s an emergency situation and the courts should treat it as such,” he said, adding that the infirmity of Trump’s case could help move things along with closure at the federal appellate court level. “I think the arguments are so weak that the Supreme Court may choose not to engage.”
“No one plays the stall game better than Donald Trump. His business strategy was to tie up people seeking payment in court until he wore them down. He’s taken the same tactic with congressional probes.”
– David Axelrod, strategist for Barack Obama’s successful presidential campaigns
In any event, the committee aide said, the panel is cognizant of the calendar: “We’re working to uncover all the facts and won’t put an artificial deadline on our investigation, but the select committee considers it a priority to advance our investigation expeditiously in order to get answers for the American people and make recommendations for necessary legislation and other actions to help protect our democracy.”
Trump became the first president in 232 years of U.S. elections to refuse to turn over power peacefully to his successor.
He spent weeks attacking the legitimacy of the Nov. 3 contest he lost, starting his lies in the predawn hours of Nov. 4 that he had really won in a “landslide” and that his victory was being “stolen” from him. Those falsehoods continued through a long string of failed lawsuits challenging the results in a handful of states.
Trump and some of his advisers even discussed invoking the Insurrection Act or declaring martial law to use the United States military to retain power, including by seizing voting machines and ordering “re-votes” in states narrowly won by Biden.
But military leaders had earlier made clear they would not involve themselves in the political process, so after the Electoral College finally voted on Dec. 14, making Biden’s win official, Trump instead turned to a last-ditch scheme to pressure his own vice president into canceling the ballots of millions of voters in several states Biden had won and declaring Trump the winner during the pro-forma congressional certification of the election results on Jan. 6.
Trump asked his followers to come to Washington that day, and then told the tens of thousands who showed up to march on the Capitol to intimidate Vice President Mike Pence into doing what Trump wanted.
The mob of supporters Trump incited attempted to do just that by storming the building. They even chanted “Hang Mike Pence” after Pence refused to comply with Trump’s demands.
A police officer died after being assaulted during the insurrection, and four others took their own lives in the days and weeks that followed. One of the rioters was fatally shot as she climbed through a broken window into an anteroom containing still-evacuating House members, and three others in the crowd died during the melee.
While the House impeached Trump for inciting the attack, all but seven Senate Republicans, led by their leader, Kentucky’s Mitch McConnell, chose not to convict him — thereby letting Trump continue his political career even as he faces several investigations into his post-election actions.
Trump and his allies are now engaged in a campaign to portray the rioter who was fatally shot, Ashli Babbitt, as a martyr and the hundreds of others who have been arrested as victims of political persecution. Trump himself continues to suggest he will run for the 2024 GOP nomination and is using his Save America committee’s money to continue spreading the same falsehoods that culminated in the violence of Jan. 6.