January 6 Subpoena Fight May Test Judicial Tactic of Running Out of Trump’s Clock

Previous President TrumpDonald Trump Trump Criticizes McConnell, Says Senator Should Attend Biden Signing Ceremony Former Trump Administration Aide Says He Was Warned About Playing Taylor Swift Music In The White House Trump Faces Legal Challenges Maintaining Biden Documents january 6 committee MOREThis week’s success in delaying the transfer of his presidential documents to Congressional investigators investigating the January 6 insurrection gave some court watchers a sense of déjà vu.

The battle over the House panel subpoena for Trump’s records is in the early stages of what will likely be a months-long fight that appears to be reaching the Supreme Court, which could then lead to more disputes in the lower courts. .

The prospect of a protracted fight in Trump’s court drew comparisons to the litigation strategy he used as president, where delay tactics were deployed to block lawsuits, hamper investigators and avoid subpoenas, with numerous cases against Trump and his administration. still hanging by a thread as he left the White House.

Although there are key differences between the legal statutes of President Trump and Citizen Trump, some experts say there is a real possibility that he could once again lengthen the legal process to exhaust the political clock.

“This is a tried and true strategy for Trump, before, during and now after his presidency,” said Steven D. Schwinn, a professor at the University of Illinois School of Law at Chicago. “He seems skilled at this, and I don’t think his sheer ability to drag the litigation is less important now that he is no longer the president.”

So far, the courts presiding over Trump’s latest legal offer have moved at a rapid pace.

Trump filed a lawsuit last month to challenge a subpoena from the House Select Committee investigating the Jan.6 attack on Capitol Hill. As part of its investigation, the panel is looking for records stored in the National Archives that relate to Trump’s time in office, including phone records and visitor records.

A federal judge in Washington, DC, rejected Trump’s offer on Tuesday. Among Trump’s various arguments was an assertion of executive privilege over the records, a claim that has been seriously undermined by President BidenJoe Biden Michael Flynn Says From US: ‘We Have To Have A Religion’ White House Tries To Change Messages On Economy Biden Expresses ‘Great Concern’ Over Belarus-Poland Border Crisis MOREthe refusal to endorse it.

Trump appealed US District Judge Tanya Chutkan’s ruling to the Washington DC Circuit Court of Appeals and asked Chutkan to stay her ruling. She refused and the appeals court granted a temporary injunction on Thursday to prevent the National Archives from releasing the records. He also scheduled oral arguments in the case for the end of this month and could issue a decision in December.

But while the lower courts have moved quickly, “the Supreme Court is a different story,” said Schwinn, who believes that Trump’s impeachment will likely go before the justices.

“The Supreme Court has already ruled in a similar case in a way that was not a clear victory for Trump, and really a loss for him, but nonetheless allowed him to prolong the litigation in the lower courts on remand,” he said. , referring to the July 2020 court ruling in Trump v. Mazars, who handled congressional subpoenas for Trump’s financial records.

Parts of Trump v. Mazars are still being litigated, 10 months after Trump left office. That case and a similar dispute related to a New York grand jury subpoena for Trump’s tax returns are illustrative of the former president’s ability to tie the courts in knots.

Manhattan District Attorney Cyrus Vance obtained a grand jury subpoena for Trump’s tax returns in August 2019. But it took 18 months for his office to fight Trump in court before Vance finally obtained the documents in February this year.

Over the course of the litigation, Trump mounted one appeal after another, with the case between the district court, the intermediate court of appeals and the Supreme Court, and then again.

When Trump left office, an emergency request from Trump to the judges was pending asking them to protect his financial records. Although his legal effort ultimately failed in court, he managed to run out the political clock.

“That could happen here as well, in which case Trump would effectively drag this out, perhaps beyond the midterm elections,” Schwinn said. “And if the Republicans take the House, it will have effectively set the clock ticking.”

The Capitol’s Jan. 6 investigating committee has not set a strict deadline for completing its work. The clearest indication of a timeline came from Rep. Bennie thompsonBennie Gordon Thompson Jan. Jan. 6 investigation threatens fragile peace between Trump and Pence Steve Bannon indicted by federal grand jury Meadows defies Jan. 6 committee, risking contempt charges MORE (D-Miss.), The committee chairman, who told Politico that he hopes the panel can complete its work “early spring” next year.

Not all court watchers who spoke to The Hill believe that Trump’s legal offer will exceed the committee’s window.

Bradley Moss, a national security attorney and partner in the Law Office of Mark S. Zaid, predicted that the case could be concluded by February at the latest.

“Mr. Trump is now in a significantly weaker litigation posture compared to when he was still sitting in the big chair in the Oval Office,” Moss said. “There is no need for your litigating opponents to violate layers. defenses over immunity as they had to do in the past. “

For now, the DC circuit is expediting the case, which has set a November 30 date for oral arguments in Trump’s appeal. But not everyone is convinced that the rest of the litigation will continue apace.

Mark Tushnet, a law professor at Harvard University, said he believes Trump’s legal claims are highly unlikely to prevail. But he kept open the possibility that Trump could nonetheless succeed in removing the litigation.

“It may be that the January 6 committee can obtain enough information to provide a credible and detailed account of the events, through cooperating witnesses and the like,” Tushnet said. “But at this point it seems likely that at least some of Trump’s claims will run out before the 2022 election.”


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