Legal experts doubt that former President Donald Trump can succeed in a bid to block disclosure of records related to his actions and communications regarding the January 6 insurrection.
In August, the congressional January 6 committee requested that the National Archives turn over records from Trump's time in office and in the aftermath of the U.S. Capitol riot, which was carried out by supporters of the former president.
President Joe Biden has declined to assert executive privilege over certain records that were requested.
But in a lawsuit filed Monday, a lawyer for Trump said that the ex-president had an interest in preserving such privilege over the documents and that the committee request was "invalid and unenforceable through the Constitution and the laws of the United States."
However, one legal expert told The Independent: "I wrote better pleadings in law school." Meanwhile, the committees' top members, Representatives Bennie Thompson (D-MS) and Liz Cheney (R-WY) hit back, saying the legal action was an attempt to "delay and obstruct" the committee's investigation.
"Precedent and law are on our side," the committee leaders' statement said, "executive privilege is not absolute and President Biden has so far declined to invoke that privilege."
Trump's lawsuit signals a major legal battle ahead. The Supreme Court has previously ruled that ex-presidents have some authority to assert executive privilege, but its extent has never been tested in court.
Peter Shane, an Ohio State University law professor, told The New York Times that the lawsuit could create new constitutional ground.
"The book of prior decisions by the courts about presidential disagreements over confidentiality is an empty book," he said, "I don't think there has ever been such a case adjudicated by a court."
Other legal experts have poured cold water on the chances of Trump succeeding.
Norm Eisen, who was the House Judiciary Committee's counsel during Trump's first impeachment, said the lawsuit was "doomed to fail" as it is Biden "who determines whether executive privilege applies, not Donald Trump."
"Therefore, the whole premise of the lawsuit that there is an executive privilege to be protected here fails," he told The Independent.
"The separation of powers arguments that are asserted in the lawsuit apply to Joe Biden, who is the current president to whom this constitutional doctrine is relevant, period," Eisen added.
Bradley Moss, a Washington, DC-based litigator, told the same publication, "I wrote better pleadings in law school," as he described the suit as "an extensive public relations pleading designed to fundraise more than anything else."
"Facts are one thing: endless legal commentary is another and this lawsuit is overflowing with it," he added.
The lawsuit names as defendants Representative Bennie Thompson (D-MS) who leads the select committee, the committee itself, the National Archives and Records Administration, and Archivist of the United States David Ferriero.
However, even if Trump does not win, the lawsuit could lengthen considerably the process of getting the White House documents past the next congressional elections.
"Trump has demonstrated an ability to pressure the delay point," Paul Rosenzweig, a professorial lecturer in law at The George Washington University Law School told CNN, "he's always been good at using litigation as a weapon, and this is another one of those."
Newsweek has contacted Trump and the White House for comment.
Uncommon Knowledge
Newsweek is committed to challenging conventional wisdom and finding connections in the search for common ground.
Newsweek is committed to challenging conventional wisdom and finding connections in the search for common ground.
About the writer
Brendan Cole is a Newsweek Senior News Reporter based in London, UK. His focus is Russia and Ukraine, in particular ... Read more
To read how Newsweek uses AI as a newsroom tool, Click here.
