Donald Trump has sought to block the release of documents related to the Capitol attack on 6 January to a House committee investigating the incident, challenging Joe Biden’s initial decision to waive executive privilege.
In a federal lawsuit, the former president said the committee’s request in August was “almost limitless in scope” and sought many records that were not connected to the siege.
He called it a “vexatious, illegal fishing expedition” that was “untethered from any legitimate legislative purpose”, according to the papers filed in a federal court in the District of Columbia.
Trump’s lawsuit was expected – as he had said he would challenge the investigation – and at least one ally, Steve Bannon, has defied a subpoena.
But the legal challenge went beyond the initial 125 pages of records that Biden recently cleared for release to the committee.
The suit, which names the committee as well as the National Archives, seeks to invalidate the entirety of the congressional request, calling it overly broad, unduly burdensome and a challenge to separation of powers. It requests a court injunction to bar the archivist from producing the documents.
The Biden administration, in clearing the documents for release, said the violent siege of the Capitol more than nine months ago was such an extraordinary circumstance that it merited waiving the privilege that usually protected White House communications.
Trump’s lawsuit came the evening before the panel was scheduled to vote to recommend that Bannon be held in criminal contempt of Congress for his defiance of the committee’s demands for documents and testimony.
In a resolution released on Monday, the committee asserts that the former Trump aide and podcast host has no legal standing to rebuff the committee, even as Trump’s lawyer has asked him not to disclose information.
Bannon was a private citizen when he spoke to Trump before the attack, the committee said, and Trump had not asserted any such executive privilege claims to the panel.
The resolution lists many ways in which Bannon was involved in the lead-up to the insurrection, including reports that he encouraged Trump to focus on 6 January, the day Congress certified the presidential vote, and his comments on 5 January that “all hell is going to break loose” the next day.
“Mr Bannon appears to have played a multifaceted role in the events of January 6th, and the American people are entitled to hear his first-hand testimony regarding his actions,” the committee wrote.
Once the committee votes on the Bannon contempt resolution, it will go to the full House for a vote and then on to the justice department, which will decide whether to prosecute.
In a letter obtained by the Associated Press, the White House also worked to undercut Bannon’s argument. The deputy counsel, Jonathan Su, wrote that the president’s decision on the documents applied to Bannon, too, and “at this point we are not aware of any basis for your client’s refusal to appear for a deposition.
“President Biden’s determination that an assertion of privilege is not justified with respect to these subjects applies to your client’s deposition testimony and to any documents your client may possess concerning either subject,” Su wrote to Bannon’s lawyer.
Bannon’s attorney said he had not yet seen the letter and could not comment on it.
While Bannon has said he needs a court order before complying with his subpoena, the former White House chief of staff Mark Meadows and former White House and Pentagon aide Kashyap Patel have been negotiating with the committee. It is unclear whether a fourth former White House aide, Dan Scavino, will comply.
The committee has also subpoenaed more than a dozen people who helped plan Trump rallies before the siege, and some of them have said they would turn over documents and give testimony.
Lawmakers want the testimony and the documents as part of their investigation into how a mob of Trump supporters stormed the Capitol building in a violent effort to halt the certification of Biden’s election win.
The committee demanded a broad range of executive branch papers related to intelligence gathered before the attack, security preparations during and before the siege, the pro-Trump rallies held that day and Trump’s false claims that he won the election, among other matters.
Trump’s lawsuit says the “boundless requests included over 50 individual requests for documents and information, and mentioned more than 30 individuals, including those working inside and outside government.”
The files must be withheld, the lawsuit says, because they could include “conversations with (or about) foreign leaders, attorney work product, the most sensitive of national security secrets, along with any and all privileged communications among a pool of potentially hundreds of people”.
The suit also challenges the legality of the Presidential Records Act, arguing that allowing an incumbent president to waive executive privilege of a predecessor just months after they left office is inherently unconstitutional.
Biden has said he would go through each request separately to determine whether that privilege should be waived.
While not spelled out in the constitution, executive privilege has developed to protect a president’s ability to obtain candid counsel from his advisers without fear of immediate public disclosure and to protect his confidential communications relating to official responsibilities.
But that privilege has had its limitations in extraordinary situations, as exemplified during the Watergate scandal, when the supreme court ruled it could not be used to shield the release of secret Oval Office tapes sought in a criminal inquiry, and after 9/11.
Monday’s lawsuit was filed by Jesse Binnall, an attorney based in Alexandria, Virginia, who represented Trump in an unsuccessful lawsuit last year seeking to overturn Biden’s victory in Nevada. Trump and his allies have continued to make baseless claims about voter fraud in the 2020 election.
Trump’s suit quotes from the supreme court’s 2020 ruling in a case by House committees seeking the then sitting president’s tax returns and other financial records. But that case involved courts enforcing a congressional subpoena. The high court in that case directed lower courts to apply a balancing test to determine whether to turn over the records. It is still pending.
The White House spokesperson, Mike Gwin, said: “As President Biden determined, the constitutional protections of executive privilege should not be used to shield information that reflects a clear and apparent effort to subvert the constitution itself.”
The select committee did not have immediate comment.