Donald Trump is preparing to sue to block the release of White House records from his administration to the House select committee scrutinizing the 6 January attack on the Capitol by claiming executive privilege, potentially touching off an extended legal battle over disclosure.
The former president also expects top aides – former White House chief of staff Mark Meadows, deputy chief of staff Dan Scavino, strategist Steve Bannon and defense department aide Kash Patel – to defy select committee subpoenas for records and testimony.
Trump’s moves to try to resist the select committee, informed by a source familiar with his planning, are likely to lead to constitutional clashes in court that would test the power of Congress’s oversight authority over the executive branch.
The former president said in recent days that he would cite executive privilege to thwart House select committee investigators seeking to compel his top aides to testify about 6 January and what he knew of plans to stop the certification of Joe Biden’s election win.
But the sharpening contours of Trump’s intention to stonewall the select committee mark a new turning point as he seeks to keep a grip on the rapidly escalating investigation into the events of 6 January that left five dead and about 140 others injured.
The plan to prevent House select committee investigators from receiving Trump White House records revolves around exploiting the procedure by which the National Archives allows both the Biden administration and Trump to review materials for executive privilege claims.
After the National Archives identifies and transmits to Biden and Trump the records requested by the select committee, Trump has 30 days to review the materials and ask the administration to assert executive privilege over any to stop their release.
The records are being delivered to Biden and Trump hundreds or thousands of pages at a time on a rolling basis, and the first tranche of documents was sent by the National Archives on 31 August, according to a source familiar with the matter.
As president, Biden retains the final authority over whether to assert the protection for specific documents, meaning that he can instruct the White House counsel, Dana Remus, to allow their release even over Trump’s objections after an additional 60 days has passed.
The former president, however, can then file lawsuits to block their release – a legal strategy that Trump and his advisers are preparing to pursue insofar as it could tie up the records in court for months and stymie evidence-gathering by the select committee.
It was not immediately clear how Trump would approach such legal challenges, and whether it would, for instance, involve individual suits against the release of specific records. A spokesperson for the former president did not respond to a request for comment.
Trump is not guaranteed to win such cases over executive privilege given he is no longer president and the White House office of legal counsel previously declined to assert the protection for previous 6 January-related testimony by Trump justice department officials.
But the plan could delay, and therefore hamper, House select committee investigators as they aim to produce a final report before the 2022 midterm elections in order to shield their work from accusations of partisanship as the nation returns to the polls.
The select committee at the very latest is probably facing a hard deadline of January 2023 by which to complete its report, since Republicans will not vote to reauthorize a panel investigating Trump and his allies should they, as expected, retake control of the House.
As for the subpoenas issued to his top aides, Trump has said in recent days that he would invoke executive privilege to prevent Meadows, Scavino, Bannon and Patel from testifying to the select committee, repeating a tactic successfully used during his first impeachment.
In a freewheeling statement after the select committee announced the subpoenas – deliberations first reported by the Guardian – the former president lashed out at the select committee’s inquiry as a partisan exercise and criticized their zeal to target his closest advisers.
“We will fight the subpoenas on executive privilege and other grounds for the good of our country, while we wait to find out whether or not subpoenas will be sent out to Antifa and BLM for the death and destruction they have caused,” Trump said.
The former president signaled his intentions to threaten a prolonged legal fight over White House records from his administration after the select committee first made its documents requests to the National Archives at the end of August.
“Executive privilege will be defended, not just on behalf of my administration and the patriots who worked beside me, but on behalf of the office of the president of the United States and the future of our nation,” Trump said in a statement.
The justice department has typically fought to keep private, executive-branch discussions between presidents and top advisers secret, to avoid setting a precedent that could prevent officials from having candid conversations for fear that they might later become public.
But with the former acting attorney general Jeff Rosen and his deputy, Richard Donoghue, the White House office of legal counsel cleared them to provide “unrestricted testimony” to Congress about Trump’s efforts to reinstall himself in office because of the gravity of the matter.