Analysis | Trump could harness unresolved legal issues to resist Jan. 6 panel’s subpoena

WASHINGTON — If former President Donald Trump decides to fight the subpoena issued to him Friday by the House committee investigating his attempts to overturn the 2020 election, his lawyers are likely to muster a battery of constitutional and procedural arguments for why a court should allow him not to testify.

In the most basic sense, any legal arguments seeking to get Trump off the hook would merely need to be weighty enough to produce 2 1/2 months of litigation. If Republicans pick up enough seats in the midterm elections to take over the House in January, as polls suggest is likely, they are virtually certain to shut down the Jan. 6 committee, a move that would invalidate the subpoena.

The issues raised by the extraordinary subpoena, which the panel announced at a hearing last week, are too complex to be definitively resolved before a potential change of power in the House, said Mark Rozell, a George Mason University professor and author of “Executive Privilege: Presidential Power, Secrecy and Accountability.”

“We are in a constitutional gray area here where there is no clear guidance as to exactly what should happen,” Rozell said. “That gives the former president some leeway to put forward various creative legal arguments and ultimately delay the process until it doesn’t matter anymore.”

Several former presidents have voluntarily testified before Congress, including Theodore Roosevelt, William Howard Taft, Herbert Hoover, Harry Truman and Gerald Ford. But there is no Supreme Court precedent that says whether Congress has the power to compel former presidents to testify against their will about their actions in office.

There are two historical precedents, but neither generated court rulings. In 1846, the House subpoenaed two former presidents, John Quincy Adams and John Tyler, for an investigation into allegations of misspending by a secretary of

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Legal experts raise doubts about a judge’s ruling over the FBI’s investigation into Trump’s Mar-a-Lago documents


Mar-a-Lago a week after the FBI raided the home of former President Donald Trump in Palm Beach, Florida.Nathan Posner/Anadolu Agency via Getty Images

  • A federal judge ruled a “special master” should be appointed to review the Mar-a-Lago documents.

  • Experts questioned the decision, particularly the view Trump might have executive-privilege claims.

  • The ruling will likely delay the FBI’s inquiry into Trump’s handling of classified information.

A federal judge’s decision Monday to appoint an independent official to review the documents hidden from former President Donald Trump’s Mar-a-Lago resort surprised legal experts.

The ruling by Judge Aileen Cannon could delay the FBI’s investigation into the former president’s decision to move government records, including highly classified information, to his home in Florida after leaving office.

Attorneys and former federal officials picked apart Cannon’s ruling, with many focusing on her view that Trump might be able to assert executive privilege over some of the records and withhold them from the Justice Department.

Executive privilege is a legal concept allowing presidents to shield records of private deliberations with advisors from Congress and courts but has not been used before by a former president to shield records from the current executive branch. A “special master” is set to review the 11,000 documents retrieved by the FBI to see if any fall into this category.

The current government is the legal owner of all government records, and the Biden administration has declined to assert privilege over any of the material Trump took with him to Mar-a-Lago or withhold it from investigators.

“I don’t think a special master makes sense in connection with executive privilege material,” William Barr, who served as attorney general under Trump, told Reuters.

He added: “If the documents are subject to executive privilege they involve official deliberations about executive actions,

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‘Biased And Corrupt’ Trump Judge Defied Law In Assigning Special Master, Legal Expert Says

Elie Mystal, an attorney and legal reporter for The Nation, accused a Donald Trump-appointed judge of bias and corruption Monday after she was appointed a special master to review documents held from his home by the FBI. (Watch the video below.)

US District Judge Aileen Cannon, nominated by Trump in 2020, made the move over the objections of the Justice Department, which is investigating Trump for allegedly harboring unsecured classified material at Mar-a-Lago.

“How on Earth could a judge who made it through law school think that Donald Trump can take the property of the government, the federal government, take it home and then have to have a special master decide whether they can investigate him?” Joy Reid asked Mystal on MSNBC’s “The ReidOut.”

To which Mystal replied: “Because she’s biased and corrupt. … I’ve been saying this since he took office: When you allow Republicans to control the courts, you get nothing. Trump judges do not believe in the rule of law. They do not believe in precedent. They do not believe in facts. They do not believe in logic. They just believe in whatever’s going to help Donald Trump and they’ve proven it again and again and again. So when I say you cannot trust Trump judges I don’t know what more evidence you need for that fact.”

Mystal dismissed Trump’s claim of executive privilege. “Privilege goes to the current president,” he said. “We only have one president at a time. So it’s not Trump’s privilege to have.”

Cannon previously had said “what is the harm?” in granting Trump’s request to appoint a special master. The special master is an independent arbiter assigned to identify what might be protected by “executive privilege,” as Trump has claimed. Some experts say Trump’s request was another attempt to subvert confidence

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