Questions Over Witnesses Presidential Privilege Preoccupy Jan. 6 Committee

A federal appeals court is weighing whether Donald Trump can block the release of records to the Jan. 6 committee even as his former chief of staff agrees to testify.

Former White House chief of staff Mark Meadows is cooperating with a House committee investigating the Jan. 6 attack on the Capitol, a major development as the panel seeks information from former President Donald Trump’s allies amid court fights and defiance from witnesses.

Rep. Bennie Thompson of Mississippi, the Democratic chairman of the Jan. 6 select committee, released a Tuesday statement about Meadows’ new compliance and plans to testify. The former White House staffer rebuffed the panel’s September subpoena for documents and a deposition a month later, but through his attorneys he is starting to “engage” with investigators and provide sought-after records.

Thompson’s statement showed some lingering skepticism, but Meadows’ decision to work with investigators is the start of a breakthrough for the committee and could ultimately mean that he avoids punitive action. After defying a similar subpoena, the House voted to hold Trump ally and former White House official Stephen Bannon in contempt followed by an indictment by a federal grand jury for criminal contempt of Congress.

“(Meadows) has produced records to the committee and will soon appear for an initial deposition,” Thompson said. “The Select Committee expects all witnesses, including Mr. Meadows, to provide all information requested and that the Select Committee is lawfully entitled to receive. The committee will continue to assess his degree of compliance with our subpoena after the deposition.”

It remains to be seen how much Meadows will play ball, especially when it comes to information or documents that he might consider protected by executive privilege – a debate at the center of a legal battle initiated by the former president that was litigated in federal court on Tuesday.

On the whole, the committee has encountered stiff opposition from Trump and his allies, who claim executive privilege over their communications and documents. Amid resistance from former DOJ official Jeffrey Clark, members of the panel will vote Wednesday on a report recommending that the House also hold him in contempt. Like Bannon, Clark argued he was protected by executive privilege asserted by Trump as well as attorney-client privilege.

Trump released a statement on Tuesday bashing the committee over a potential contempt referral for Clark, once again calling it “rigged” and taking aim at the only two Republicans on the House panel – both of whom voted to impeach him earlier this year for his handling of the attack.

In addition to witness testimony, the select committee is seeking troves of documents that members believe will help inform them about what Trump, the White House and his allies might have known about the Jan. 6 riots during the certification of President Joe Biden’s victory. The bitter fight over those records played out in a federal appeals court for several hours on Tuesday as three judges weighed whether Trump can overrule a decision by Biden and block them from being transferred to the committee.

At issue are the first batches of documents sought by the Jan. 6 panel that are housed at the National Archives and Records Administration. Trump asserted executive privilege over those specific records, which encompass a whole range of communications, letters, call logs and other records from his closest allies and staffers, including Meadows.

But Biden waived those privileges, citing the need for such documents to aid in the House committee’s investigation of the deadly attack and to prevent future threats on the Capitol. Biden, however, has remained open to granting privilege to future documents.

Earlier this month, a federal district court denied Trump’s request to block the transfer of documents to Congress, which prompted the former president to appeal the decision.

The crux of the case before the D.C. Circuit Court of Appeals – as Judges Patricia Millett and Ketanji Brown Jackson put it – is who should get the final say in a matter like this: a current president (Biden) or a former president (Trump).

“This all boils down to who decides,” Jackson said during arguments, “Who decides when it’s in the best interest of the United States to disclose presidential records.” Jackson said. “Is it the current occupant of the White House or the former”

“Why should (Trump) be able to make that determination.” Jackson asked while questioning his lawyer. “Is there a circumstance where a former president ever gets to make this kind of call. And why should he”

The line of questioning signaled skepticism toward the arguments from Trump’s attorneys. For their part, they defended a former president’s rights to executive privilege and a “necessity for a former president to maintain the confidences of the records created during his term of office,” according to Trump lawyer Jesse Binnall.

“Trump asserted privilege over a handful of documents that we're talking about here. The majority of documents … are out the door. Congress can have them. Creating a determination whether privilege exists between former and current president is really what’s at stake here,” said attorney Justin Clark, who also argued on behalf of Trump.

Trump’s lawsuit has paused the dissemination of documents from the National Archives. While a decision in favor of the committee would be a major boon for investigators, the former president could appeal the decision again and could go before the full appellate court or the Supreme Court. If the case is still being litigated, it’s unclear if the transfer of records would remain on hold and for how long.