The Mixed Legacy of the January 6 Investigation for Executive Privilege and Congressional Oversight

Fall 2022

37 Const. Comm. 421

Jonathan David Shaub[1]

Abstract

The attack on the Capitol on January 6 was an unprecedented event in U.S. history. Across a wide swath of constitutional law, January 6 will have significant implications and consequences, most of which are likely not yet known. That is particularly true of constitutional doctrines governing congressional oversight and executive privilege. The select committee established by the House of Representatives to investigate the events on and leading up to January 6 has undertaken a monumental task of investigating, collecting, and reporting the facts surrounding the attack, and the January 6 committee has doggedly pursued an exhaustive investigation in furtherance of its originating purposes and functions. That pursuit—undertaken pursuant to Congress’s implicit authority to conduct oversight—has generated numerous important precedents related to the scope of that authority and the constitutional doctrine of executive privilege, the executive branch’s common defense to congressional oversight.

This Essay undertakes a first attempt to understand the legacy of the precedents on congressional oversight and executive privilege generated by the January 6 investigation against the backdrop of the constitutional disputes that predated the committee’s inception. Most importantly, perhaps, the committee’s success—alongside several high-profile failures—demonstrates forcefully the extent to which Congress must rely on the executive branch to assert its constitutional authority. The successes of the committee were almost wholly attributable to a politically aligned, sympathetic White House and Department of Justice. Beyond that, the judicial and executive branch precedents generated by the investigation will be particularly impactful in three ways. First, these precedents powerfully affirm a constitutional role for congressional reconstruction and reconciliation of past events, even if no specific legislative action is on the table. Second, they cast significant doubt on the continued validity of the executive branch’s position that Congress acting in its legislative capacity can rarely, if ever, meet the showing of need for specific information necessary to overcome an assertion of executive privilege. Third, they reinforce Congress’s authority to demand information on pain of criminal contempt and restrict available defenses to that contempt. These three affirmations of congressional authority are all tempered somewhat, however, by the underlying need for executive branch support.

Introduction

The doctrine—or, perhaps more accurately, doctrines—of executive privilege is informed as much by historical precedent and norms of cooperation and accommodation as by law, including common law, relevant statutes, and judicial precedent. Indeed, given the relative dearth of legislative and judicial exegesis on executive privilege, its practice is arguably lawless—flexible enough to be adapted to whatever ends necessary or desirable in a particular situation.[2] The congressional investigation into January 6 has made that abundantly clear, with executive privilege in its myriad permutations forming the basis for almost every attempt by former president Trump and his associates to withhold information from the January 6 Committee[3] or to prevent the committee from accessing information.

These interactions and disputes over privilege illustrate the increasingly problematic ambiguities that currently plague the doctrine. Many scholars and commentators, including myself, have written about the merits and importance of the individual disputes over executive privilege and the ongoing legal battles and criminal prosecutions.[4] But this Essay focuses directly on the legacy of those disputes and their resolution for the doctrine of privilege and the practice of congressional oversight moving forward. These historical and judicial precedents have outsized importance precisely because there is so little applicable precedent in the area.

The series of disputes over executive privilege generated by the January 6 committee implicate a broad and diverse range of legal principles and constitutional questions. Just as the precedents during the Watergate-era today form the most important precedents at the foundation of current disputes over privilege,[5] the precedents generated by the January 6 investigation establish a new set of foundational principles that the legislative and executive branches must incorporate and build upon in future disputes. The January 6 investigation will have a substantial legacy in the doctrine of executive privilege.

This Essay makes a first attempt at understanding that legacy. Perhaps ironically, the significance of the January 6 precedents on privilege is likely inversely related to the significance one attaches to the events of January 6 itself. The more extraordinary the events of January 6, the less significance these precedents potentially have; they can and will be distinguished as sui generis.[6] But either way, these precedents will be added to the relatively few that exist in the area of executive privilege. And, as is the case in any interbranch constitutional disputes, historical practice and precedent has substantial weight both for intrabranch constitutional interpretation—such as OLC opinions or the House of Representatives’s understanding of its oversight authority—and for judicial resolution of interbranch constitutional issues.[7]

Most prominently, the legacy of the January 6 investigation is a high-profile, high-stakes confirmation of Congress’s current inability to assert its constitutional authority.[8] The January 6 committee succeeded in large part because it had like-minded, co-partisans in the White House and Department of Justice. And the committee failed to get information or impose consequences on those who withheld information when the executive branch refused to support it.

Nevertheless, in three areas specifically, precedents generated from the January 6 investigation will likely serve to bolster congressional authority in the future. First, the executive branch and judicial precedents arising out of the January 6 investigation powerfully affirm a constitutional role for congressional reconstruction and exposition of past events, even if no specific legislative action is on the table. Second, they cast significant doubt on the continued validity of the executive branch’s position that Congress acting in its legislative capacity can rarely, if ever, meet the showing of need for specific information necessary to overcome an assertion of executive privilege. Third, they reinforce Congress’s authority to demand information on pain of criminal contempt and restrict available defenses to that contempt.

As a theoretical matter, the legacy of these precedents supports broad congressional oversight authority and perhaps tempers some of the potential limits on that authority arising out of the Supreme Court’s 2020 decision in Trump v. Mazars.[9] As a practical matter, however, their legacy may also be to reaffirm the inability of Congress to enforce that authority without assistance from the executive branch.

The Pre-January 6 State of
Congressional Investigatory Power
and Executive Privilege

Congress’s authority to conduct oversight is widely accepted and well recognized.[10] And few question the existence of some form of executive privilege.[11] But outside of such broad generalizations, the precise boundaries and limits on these two implicit constitutional authorities are the subject of extensive disagreement. The repeated confrontations between Trump, his administration, and the House of Representatives tested and illustrated many of these disagreements.[12] And these disputes helped establish the state of congressional oversight and the doctrine of executive privilege at the end of the Trump administration and the beginning of the January 6 investigation. That background is vital to understanding the importance of the January 6 precedents.

Congressional Oversight Authority

During the Trump administration, the Justice Department, in perhaps its most significant doctrinal expansion of executive branch authority vis-à-vis Congress in information disputes, aggressively questioned the legitimacy and authority of congressional oversight, even when there were no questions of executive privilege at issue.[13] Trump personally, supported by the Justice Department, adopted this same skepticism of legislative purpose and aggressively challenged it in court, ultimately leading to the Supreme Court’s decision in Mazars.[14] The January 6 investigation has proceeded in the immediate aftermath of those precedents—most importantly, Mazars—and has particular importance as the first application of Mazars to an oversight dispute.

All agree that Congress may pursue oversight for “legislative” purposes,[15] but the branches dispute how closely tied to specific legislation congressional oversight must be. Congress claims broad authority to conduct oversight into the working of the executive branch in order to “inquire into and publicize corruption, maladministration or inefficiency in agencies of the Government.”[16] Congress emphasizes precedent establishing that legislative oversight authority includes the power to conduct “surveys of defects in our social, economic or political system for the purpose of enabling the Congress to remedy them,” without necessarily having to connect that oversight to pending or potential legislation.[17] Relatedly, Congress emphasizes the “informing function” of oversight, which includes informing Congress about information related to areas in which legislation could be considered and informing the public about the executive branch’s performance of its responsibilities.[18]

The executive branch, on the other hand, has at times pushed back on this more generalized oversight authority and emphasizes language from these same precedents that the oversight power is “justified solely as an adjunct to the legislative process” and must be “related to, and in furtherance of, a legitimate task of the Congress.”[19] The executive rejects any congressional authority to “inform” the public about the workings of the government[20] or to conduct investigations that are akin to law enforcement investigations,[21] and emphasizes that oversight cannot be “used to inquire into private affairs unrelated to a valid legislative purpose”[22] or to “exposure for the sake of exposure.”[23] And, in the Trump administration, the executive branch aggressively questioned the legitimacy of certain requests for information in refusing to turn over information, an approach only rarely adopted publicly in the past.[24]

Mazars presented the issue of legislative authority directly. The consolidated cases decided in Mazars involved congressional subpoenas sent to third parties for Trump’s private financial information.[25] Accordingly, it did not involve any question of executive privilege—which applies only to governmental information—or any other constitutional or common law defense to the subpoenas. The entire challenge centered on the argument that the committees lacked authority to issue the subpoenas because they lacked a true legislative purpose.[26] Trump challenged both the sincerity of the committee’s stated legislative purposes and the relation of the information sought to that purpose; he argued that the committee’s true purpose was to expose his financial information “for the sake of exposure,” a purpose outside of its legislative oversight authority.[27] The Justice Department supported Trump’s arguments, reiterating past executive branch arguments that the congressional power of inquiry, though broad, had definitive limits.[28] And in the Justice Department’s view, because a subpoena involving the private information of a sitting president raised separation of powers concerns, the courts should quash the subpoena unless the committee could show that its need for that particular information was compelling.[29]

The Supreme Court adopted a middle ground in the Mazars decision. The opinion surveys past precedent on the legislative oversight authority, reaffirming the general power to inquire into the administration of existing laws and to survey existing systems for defects in need of a remedy.[30] But the Court also made it clear that the power is “subject to several limitations.” First, oversight must “serve a valid legislative purpose,” which the Court indicated means it must “concern[] a subject on which legislation ‘could be had.’”[31] Second, “Congress may not issue a subpoena for the purpose of ‘law enforcement,’ because that authority belongs to the other two branches.[32] Accordingly, Congress does not have a general power to investigate private affairs or “expose for the sake of exposure.”[33] Finally, the Court recognized that recipients of congressional subpoenas retain their constitutional rights and common law privileges.[34]

In Mazars, the Court largely adopted an argument long made by the executive branch—that legislative investigations, in contrast to criminal investigations, do not often need the full disclosure of all the facts.[35] Moreover, the Court admonished courts to scrutinize the “nature of the evidence offered by Congress to establish that a congressional subpoena advances a valid legislative purpose,” rather than simply deferring to Congress’s judgment on that question.[36] Mazars adopted this test for the specific context of a subpoena for private papers of the president. Despite that limited scope and the fact that Mazars largely repeated and collected past precedent in reaching its conclusions about oversight authority, the Court’s willingness to scrutinize both the existence of and evidence for a legislative purpose potentially represents a more robust role for the judiciary in determining whether congressional oversight has exceeded its limitations.

The Qualified Executive Privilege

Congress and the executive branch also have widely divergent views on executive privilege.[37] These disagreements span several areas, but one of the most significant differences has to do with the ability of Congress to overcome an assertion of executive privilege. In Nixon, the Supreme Court recognized that the presumptive privilege for the information at issue—what it noted were “presidential communications”—was overcome by the need of the grand jury. In Congress’s view, Nixon establishes and delimits the scope and applicable test for all assertions of executive privilege.[38] As House counsel argued in the litigation over President Obama’s assertion of executive privilege over materials related to the failed ATF Fast & Furious operation, executive privilege encompasses only presidential communications, and that general, undifferentiated confidentiality interest gives way if Congress demonstrates a specific need for that sought-after information, the standard applied in Nixon.[39] Congress has also argued that even if other types of information—such as internal agency deliberations—are covered by executive privilege as the Justice Department contends, the showing of need necessary to overcome an assertion of privilege over those materials would be substantially less demanding than the standard announced in Nixon for presidential communications.[40]

In the executive branch’s view, by contrast, Nixon defines neither the scope of executive privilege nor the showing of need necessary to overcome an assertion of the privilege.[41] As to
the scope, the executive branch interprets Nixon to address
only one “component” of executive privilege—presidential communications—and understands the privilege to encompass a series of other components as well, including diplomatic information, internal deliberations, law enforcement material, and attorney-client communications and work product.[42]

With respect to the showing of need necessary to overcome an assertion of privilege, the executive branch interprets Nixon to apply only to a subpoena issued in connection with a criminal inquiry and is inapplicable to congressional subpoenas. Instead, the Justice Department has pointed to the standard from the D.C. Circuit’s Watergate-era decision in Senate Select Committee on Presidential Campaign Activities v. Nixon,[43] which required the Senate Select Committee to show the “subpoenaed evidence [was] demonstrably critical to the responsible fulfillment of the Committee’s functions.”[44] The court determined that the select committee had not met that standard because a House committee already had the tapes. Although the facts and circumstances of Senate Select are somewhat unique given that one committee of Congress does not often subpoena materials another committee has, the executive branch derives from it a stringent requirement of need.

Justice Department writings make it clear that it understands the Senate Select standard to be almost impossible for Congress to meet when it is pursuing legislative oversight. In contrast to the grand jury subpoena for material related to a criminal inquiry at issue in Nixon, the “need for the communication itself w[ill] seldom be ‘specific and central’ to the legislative power in the same way such evidence is ‘fundamental’ to the administration of criminal justice.”[45] Based on this reasoning, the Justice Department has repeatedly supported presidential assertions of executive privilege by pointing to Congress’s inability to establish an essential need for the specific information at issue.[46] As it repeatedly says, quoting Senate Select, Congress rarely has the need to conduct a “precise reconstruction of past events” when pursuing legislative purposes.[47] Moreover, in the executive branch’s view, that heightened need requirement set out in Senate Select applies to all assertions of executive privilege, no matter whether the assertion is based on presidential communications, internal agency deliberations, law enforcement information, or another component of executive privilege.[48]

Finally, the executive branch has developed a number of doctrines related to executive privilege that, in its view, are absolute and cannot be overcome by any showing of congressional need. I have called these “prophylactic” executive privilege because they are justified, in part, by the executive branch’s need to protect executive privilege.[49] But these doctrines, which all have some support in past OLC writings, came into particular prominence during the Trump administration, especially the doctrine of absolute testimonial immunity. That doctrine holds that presidents and their senior advisers are absolutely immune from compelled congressional testimony.[50] The Trump administration relied on and extended this doctrine considerably to rebuff congressional oversight[51]—and applied it, with cursory analysis, to prohibit even compelled testimony during an impeachment inquiry.[52] And this doctrine would feature prominently in the January 6 investigation.

Congress rejects any type of immunity, of course. The House has twice brought civil suits to compel testimony and reject claims of immunity,[53] and, although none of the suits have resulted in an appellate precedent on the merits of the immunity doctrine, every judge to have considered its merits—representing a diverse range of ideology—has rejected it, at times quite forcefully.[54] But the most striking thing about immunity and these other prophylactic doctrines—a characteristic that became important in the context of the January 6 investigation—is that they are not, in the executive branch’s traditional view, qualified doctrines. Each of these doctrines is grounded in a need to protect executive privilege, but unlike that privilege, these defenses cannot be overcome by any showing of need, no matter how critical the testimony or information is to Congress. In other words, the doctrines designed to protect executive privilege are broader and more difficult to overcome than the underlying privilege itself.

The January 6 Precedents

The January 6 investigation raised a number of high-profile issues related to congressional oversight and executive privilege, including, among other things, questions about a former president’s ability to assert privilege, the ability to challenge the validity of congressional demands based on procedural irregularities in the committee, and the authority of a congressional committee to subpoena a former president. And, as is true in the context of privilege and oversight more broadly, the very fact that these issues arose and were addressed will serve as some precedent and as the basis for future discussions and negotiations. But the January 6 investigation was also somewhat unique in that a number of issues that arose were actually resolved—and resolved definitively—in a manner that will not only provide talking points in future discussions and negotiations but will in fact control and cabin that discourse.

Executive Branch Precedents

In the context of executive privilege and congressional oversight, actions taken by the executive branch—whether formally explained or not—set as important of precedents as judicial decisions. These can take the form of formal OLC opinions, but they are just as often statements or writings of the president or even just actions taken by a president.

The January 6 investigation has not, at least at the time of this writing, led to any published, formal OLC opinions.[55] The executive branch has, however, taken a number of important positions during the investigation. Several of these take the form of letters or statements by executive branch officials, including the president. And others take the form of briefs and filings in litigation. Even though these positions do not necessarily bind subsequent OLC or executive branch determinations, they will be vitally important in articulating those positions because of the desire of the executive branch to establish historical consistency and the need to rely on that history in support of claimed constitutional authority.

The White House’s determination not to assert executive privilege

One of the first big privilege questions of the January 6 investigation was the committee’s request for presidential records from the National Archives.[56] An outgoing presidential administration must designate all of the presidential records from the administration at the close of the president’s term, and these records are then taken into custody by the Archives and governed by the Presidential Records Act of 1978, or PRA.[57] The PRA, of course, became a major issue after Trump left office,[58] but the law itself has little effect on a current president’s authority to withhold information from Congress (its principal relevance in the context of executive privilege is in the context of former presidents). Instead, a sitting president retains authority to assert executive privilege over presidential records in NARA’s possession even if a congressional committee has subpoenaed them, and the same constitutional principles discussed above apply.

In an October 8, 2021, letter to the Archivist, Biden’s White House counsel Dana Remus conveyed that Biden had determined not to assert executive privilege over the records subpoenaed by the committee. Remus explained that “the insurrection that took place on January 6, and the extraordinary events surrounding it, must be subject to a full accounting to ensure nothing similar ever happens again.”[59] She continued to emphasize that “Congress has a compelling need in service of its legislative functions to understand the circumstances that led to these horrific events” and that it had established a “sufficient factual predicate” to demand documents about “events within the White House on and about January 6.”[60] Remus’s letter also highlights the “unique and extraordinary circumstances” of the January 6 “assault on our Constitution and democratic institutions” and the fact that the conduct under investigation by the January 6 committee “extends far beyond typical deliberations concerning the proper discharge of the President’s constitutional responsibilities.”[61] She concludes with the statement that “[t]he constitutional protections of executive privilege should not be used to shield, from Congress or the public, information that reflects a clear and apparent effort to subvert the Constitution itself.”[62]

Presidents have often decided to turn information over to Congress despite the potential for a privilege claim.[63] But Remus’s letter, and the understanding of executive privilege it conveys, is quite rare. It is now one of the vanishingly few examples of the executive branch publicly determining that an assertion of executive privilege is not appropriate in a particular situation. As such, its rationale is vitally important.

A number of past executive branch precedents justify the provision of sensitive information typically protected by privilege by pointing to the existence of wrongdoing. Indeed, the House has previously argued—with some precedential support—that executive privilege disappears entirely when there has been a showing of misconduct.[64] Notably, however, Remus’s letter—unlike, for example, the rationale President Reagan provided in disclosing information and even his personal diary during the Iran-contra investigation—does not mention the word misconduct or wrongdoing. Instead, it focuses on two things: First, the compelling need of the committee to conduct a “full accounting” and, as a part of that, to “understand the facts” of the events on and around January 6. And, second, the “unprecedented,” “horrific,” “extraordinary,” “unique,” “far beyond typical” nature of January 6, which the letter describes variously as an “insurrection”; an effort to “subvert the Constitution,” “obstruct the peaceful transfer of power,” and “threaten[] the safety of Congress” and “the principles of democracy enshrined in our history and our Constitution”; and “an assault on our Constitution and democratic institutions provoked and fanned by those sworn to protect them.”[65]

The letter does not explicitly say that Congress’s need for the information overcomes executive privilege under Senate Select Committee balancing test. But the rationale that it provides very clearly mirrors that inquiry. President Biden determined that executive privilege was not appropriate because the balance in this instance—given Congress’s need and the extraordinary nature of January 6—favored Congress. Although the White House could have potentially mirrored Reagan’s approach and justified its decision to hand over the documents because of the misconduct inherent in the events of January 6, it chose not to do so. Instead, it relied solely on the information needs of the committee. To my knowledge, that is the first time the executive branch has ever memorialized in writing its conclusion that Congress’s need for information outweighs the president’s authority to assert executive privilege.

The Justice Department’s brief on Meadows’s immunity claim

Another executive branch first occurred in the context of the January 6 committee’s attempt to procure testimony from Mark Meadows, Trump’s chief of staff during the events in question.[66] Meadows, represented by former high-ranking Justice Department official George Terwillinger, vacillated between outright defiance of the committee’s demands and engagement, cooperation, and negotiation.[67] On Meadows’s behalf, Terwilliger penned an op-ed in the Washington Post largely emphasizing the doctrine of testimonial immunity and the history of the Justice Department rejecting Congress’s authority to compel senior presidential advisers to testify.[68] Terwilliger also made these arguments to the committee, to no avail.[69] Finally, as it became clear that the House would hold Meadows in contempt and refer him to the Justice Department for prosecution, Terwilliger filed a declaratory judgment action against the House and the committee, asking a court to step in and declare the committee’s subpoena invalid.[70] One of the arguments in the lawsuit was that Meadows enjoyed immunity from compelled testimony.[71]

Meadows‘s lawsuit, which the House litigated rather than moving for its dismissal under the Speech and Debate Clause,[72] gave rise to one of the most important executive branch precedents to emerge from the January 6 investigation. Given the past precedent on which Meadows relied, the district court requested that the Justice Department file a brief in the case explaining its view of Meadows’s immunity.[73] The Justice Department accepted that invitation, and its brief addressed for the first time the immunity of a senior White House aide to a former president.[74] In concluding that Meadows did not enjoy immunity, the Justice Department concluded and explained publicly for the first time that a senior presidential advisor was not immune from compelled testimony.

The Justice Department acknowledged its past opinions asserting that both current and former advisers to a sitting president enjoyed absolute immunity from compelled congressional testimony. But it distinguished the rationales underlying those precedents as not necessarily applicable to the question whether a senior adviser to a former president could be compelled to testify. As it reasoned, the “constitutional concerns” that arise when Congress seeks testimony from a senior adviser or former senior advisor to a sitting president “are in some respects less acute when Congress seeks to compel testimony from immediate advisers to a former President about their official duties while in office. Accordingly, the Constitution does not require the continuation of absolute testimonial immunity for such advisers.”[75] However, the Justice Department feared that if Congress had “unchecked authority to compel” testimony by an adviser to a former president, that authority “would still pose a serious threat to the separation of powers.”[76] Accordingly, the department advocated for a qualified immunity to “protect the separation of powers” but still “allow Congress to obtain such testimony when it can make a sufficiently strong showing of need.”[77] Then, echoing language from Remus’s letter to the Archivist, the Justice Department emphasized the unique and compelling need of the committee to investigate January 6 and found the committee’s need sufficient to overcome Meadows’s qualified immunity.[78]

Justice Department decisions about criminal contempt of Congress

Not since the McCarthy-era and the infamous investigations of the House Committee on Un-American Activities has a congressional investigation led to a spate of contempt of Congress charges in the way that the January 6 investigation did.[79] The committee referred four individuals to the Justice Department for prosecution for criminal contempt of Congress,[80] and it threatened numerous others. To date, one of the individuals referred—Stephen Bannon—was indicted and convicted of contempt of Congress, the first conviction for contempt in almost half a century.[81] He was initially sentenced to four months in prison and fined $6,500 for each of the two counts of contempt on which he was convicted.[82]

Based on its understanding of the executive and prosecutorial power under the Constitution, the Justice Department interprets the contempt of Congress statute—despite its seemingly mandatory use of the word “shall”—to give the department discretion to decide whether to pursue criminal charges.[83] And it exercised that discretion in a somewhat confounding manner during the January 6 investigation. Along with Bannon, the Justice Department also indicted Peter Navarro for contempt of Congress[84]—the first such indictments in nearly three decades.[85] But it declined to bring contempt charges against Meadows and former White House communications aide Dan Scavino before a grand jury.[86]

Bannon was a private individual at the time of January 6, but Navarro was a senior White House advisor like Scavino and Meadows.[87] All four of the individuals had cited executive privilege and related doctrines such as absolute immunity in refusing to comply with the committee’s subpoenas. Meadows and Scavino engaged in some negotiation with the committee, and Meadows provided some documents. It appears, however, that Scavino, like Navarro, never provided the committee with any information even though he dragged the negotiations out longer than Navarro.[88] And all three were Assistants to the President, the senior most level of presidential advisors in the White House.[89]

At the time of this writing, the Justice Department has not explained the basis for its decision.[90] And in combination with the Meadows Brief, the Justice Department’s declination is even more important. The past executive branch precedents declining to bring contempt prosecutions have relied on general separation of powers principles about prosecutorial discretion and executive power, but the department has only declined to bring such prosecutions when it found a constitutional bar to prosecution—such as an assertion of executive privilege,[91] testimonial immunity,[92] or the Fifth Amendment privilege against self-incrimination.[93] In the Meadows Brief, though, the Justice Department acknowledged that Meadows did not have a constitutional defense. Thus, the decision not to prosecute represents the most robust assertion of executive branch power yet in the context of criminal contempt of Congress. The Justice department’s decision sets a new precedent—the first time the Justice department has declined to prosecute a contempt referral based wholly on inherent prosecutorial discretion and policy rather than constitutional proscription.[94]

Moreover, in the prosecution of Bannon, the Justice Department was forced to take several positions about the appropriate interpretation of the contempt statute. Pointing to previous OLC opinions on immunity and privilege, Bannon and Navarro attempted to rely on past OLC opinions to argue that their prosecution violated due process because their actions were authorized by the very entity—the Justice Department—that was prosecuting him, a type of public authority defense.[95] In the Bannon prosecution, the court rejected these arguments on the ground that the opinions on which Bannon relied had no application to his circumstances as a private citizen orchestrating the actions of private individuals and groups on and leading up to January 6.[96]

Perhaps more importantly, Bannon’s initial primary defense was that he had simply been following the former president’s direction not to testify and honoring the former president’s claim of executive privilege, which his counsel had advised him was appropriate.[97] Accordingly, Bannon contended that he did not have the requisite mens rea to be guilty of “willfully” failing to comply with the committee’s subpoena. In essence, he attempted to raise a good faith defense to contempt of Congress charges.[98] The Justice Department, relying on a prior contempt precedent that did not involve claims of privilege, successfully argued that D.C. Circuit precedent foreclosed any good faith defense.[99] In other words, no matter what directions an individual had received from a former president or even a current president and no matter the validity of those orders, an individual who knew a congressional committee had subpoenaed him to testify had to appear or would be guilty of contempt. Such a broad argument has ramifications for claims of privilege and immunity in the future.

Trump v. Thompson

The most influential judicial precedents arising out of the January 6 investigation involved the same subpoena to the National Archives that Remus was addressing in her letters to the Archivist. After President Biden refused to assert privilege and directed the Archivist to turn the subpoenaed documents over to the committee, former president Trump sued the Archivist and the committee under the PRA asking the court to enjoin the Archivist from giving the documents to the committee.[100] Trump claimed that the committee had no authority to subpoena the materials and that, even if it did, he retained the right to assert executive privilege over materials from his administration, that he had done so, and that his claim should have been given more weight both as a substantive and a procedural matter by the Biden White House and the National Archives.[101] The case ultimately resulted in both a lengthy opinion from the D.C. Circuit[102] and a short, summary statement from the Supreme Court declining to stay the D.C. Circuit opinion.[103] These opinions will be vital precedents for the understanding of executive privilege going forward.

Congressional Oversight Authority

In attempting to stop or delay the January 6 committee’s investigation, Trump’s legal team repeatedly questioned whether the committee had a legitimate legislative purpose in pursuing its inquiry, typically citing Mazars. One former spokesman for Trump, for example, argued to the D.C. District Court that “[t]he Select Committee has failed to identify any legislative purpose served by its Subpoena. It has not considered any draft legislation, nor has it provided any explanation for why its request would further any valid legislative end.”[104] And numerous Trump administration officials, including Meadows, accused the committee of engaging in “law enforcement” and acting to “expose for the sake of exposure” rather than pursuing legitimate legislative purposes.[105]

Trump made these same arguments in his suit against the committee. He argued that the committee was “ignor[ing] the constitutional limits on Congress’s power to investigate” because it was conducting a “fishing expedition directed at President Trump’s records” that lacked any legislative purpose.[106] After citing the existing precedent that imposed limits on the ability of Congress to exposure for the sake of exposure or to engage in law enforcement functions, Trump claimed that “there is nothing in the overwhelming majority of the records sought that could reasonably be justified as a means of facilitating the legislative task of enacting, amending, or repealing laws.”[107] Trump repeated these arguments to the D.C. Circuit[108] and, ultimately, the Supreme Court.[109] And in some instances he cited statements by committee members that appeared to equate their work with that of law enforcement.

The D.C. Circuit rejected this argument out of hand.[110] It concluded that the committee “plainly” had a valid legislative purpose by pointing to (1) the authority of the committee to propose legislation under its authorizing resolution and (2) a series of areas in which Congress could legislate that bore some relation to January 6.[111] Notably, in rejecting Trump’s argument that the committee had an “improper law enforcement purpose” and in reality just wanted to “try” him for “wrongdoing,” the panel pointed directly to the “announced purpose” of the committee.[112] The court noted that the committee had indicated it intended to issue a final report including “recommendations” about “changes in law, policy, procedures, rules, or regulations,” and had reiterated that purpose in its letter to the Archivist and in other places as well.[113] Indeed, as Quinta Jurecic and Molly Reynolds documented, the committee took great pains—perhaps because of Mazars—to emphasize its legislative purposes throughout its investigation.[114] And the court accepted those “announced purposes” and statements and never even discussed Trump’s argument that those purposes were pretext for a law-enforcement type investigation and exposure of wrongdoing.

The Supreme Court’s denial of the request for a stay in Trump v. Thompson, as discussed in the next section, focused squarely on the question of executive privilege. But no member of the Court wrote separately to question the committee’s legislative purpose. Justice Thomas dissented in Mazars, arguing that Congress had no power to subpoena private documents, a position that would greatly curb Congress’s oversight authority.[115] Although he dissented from the denial of the stay in Trump v. Thompson, he chose not explain his rationale.

Nor did the succinct statement of the Court denying the stay mention Trump’s legislative purpose argument, despite the fact that the Supreme Court appeared to rest its decision not to intervene on the D.C. Circuit’s conclusion that the committee had sufficient need to overcome executive privilege.[116] The question of the committee’s legislative purpose is antecedent to the question of privilege; the Court could not consider the question of whether privilege was overcome without necessarily first concluding that the committee had a legislative purpose. And apparently that conclusion was so noncontroversial and straightforward that the Court did not feel the need to discuss it.

Showing of Need Necessary to Overcome Executive Privilege

The Supreme Court’s one-paragraph decision in Trump v. Thompson says remarkably little about executive privilege. But that decision, in combination with the D.C. Circuit opinion that it declined to undo, establishes the first appellate precedent applying the balancing test from Nixon to a congressional subpoena, as opposed to a grand jury subpoena.

In its order, the Supreme Court avoided the more difficult questions about a former president’s authority and instead affirmed because it understood the D.C. Circuit to say that Trump would have lost “even if he were the incumbent.”[117] The Court noted that the “questions whether and in what circumstances a former President may obtain a court order preventing disclosure of privileged records from his tenure in office” when the incumbent President disagrees “are unprecedented and raise serious and substantial concerns.”[118] But then, in a remarkable exercise of judicial interpretation, the Court found that the D.C. Circuit “had no occasion to decide these questions” and that the extensive discussion of a former President’s authority in the D.C. Circuit opinion was all dicta, constitutional analysis that “made no different to the court’s decision.”[119] The Court pointed to the statement made by the D.C. Circuit that Trump’s claims of privilege would fail “‘under any of the tests [he] advocated,’ without regard to his status as a former president” as evidence that the rest of the opinion should be considered “nonbinding dicta,” and cited to a specific section of the lower court’s analysis on this issue.[120]

The clear implication of the Supreme Court’s order is that the Court would have needed to engage in much more extensive consideration of the “unprecedented” questions about a former President’s authority if those were the dispositive questions in the case. Justice Kavanaugh’s separate statement supporting a former president’s authority suggests there was division among the Court on those issues.[121] But the clear implication of the Supreme Court’s order is that the considerations Kavanaugh discusses were rendered unnecessary by the D.C. Circuit’s analysis of congressional need, an analysis with which no member of the Court appeared to disagree except Justice Thomas.

The Court set up a dichotomy between (1) the “unprecedented” nature of the questions about a former president’s authority and (2) the seemingly straightforward question whether Congress’s need outweighed a potential claim of privilege over the presidential records. And that dichotomy, expressed in a Supreme Court opinion, is exceptionally important. No judicial precedent had ever concluded that a congressional committee’s need for information it had subpoenaed outweighed a claim of executive privilege over presidential communications. And, as noted previously, the executive branch had consistently suggested that such a showing of need was perhaps not even possible outside the criminal context.[122]

Surprisingly, the majority of the portion of the D.C. Circuit opinion cited by the Supreme Court is unrelated to the executive privilege balancing test. Instead, in the relevant pages, the D.C. Circuit opinion, having just rejected Trump’s arguments that he can “surmount President Biden’s considered judgment” about privilege, “pivots” to Trump’s argument “that the January 6th ‘Committee lacks a specific need for the requested information.”[123] This portion of the opinion principally addresses—and rejects—the arguments drawn from Mazars that the committee lacks legislative authority and Trump’s argument that the committee has not met its burden under the PRA to show the information is “needed for the conduct of its business” and “not otherwise available.”[124]

But there are also two very short paragraphs relevant to executive privilege responding to Trump’s argument that the committee has not made an adequate showing of need.[125] Those paragraphs conclude in an extremely cursory fashion, that the committee has met both the showing of need required by Senate Select—i.e., that the information be “demonstrably critical” to the committee’s functions—and the showing of need required in Nixon—i.e., that the committee has a “demonstrated, specific need” for the information.[126] With respect to the first, the D.C. Circuit noted that in Senate Select the subpoenaed evidence was not “demonstrably critical” because a House Committee already had access to all of the tapes sought by the Select Committee.[127] In the D.C. Circuit’s straightforward analysis, because Trump had “made no showing that the records at issue here are already within the possession of another committee,” the January 6 committee’s efforts to get the information were not “merely cumulative” and, therefore, “the records remain[ed] ‘demonstrably critical’” to the January 6 investigation.[128] The D.C. Circuit made similar short work of the balancing test from Nixon, concluding that because the records subpoenaed “provide a unique and critically important window into the events of January 6 that the Committee cannot obtain elsewhere,” the committee had “demonstrated a specific and compelling need” for the record.[129]

In the context of the 68-page opinion the D.C. Circuit issued, the above analysis occupies two single paragraphs, not even half a page. The discussion of the balancing tests applicable to executive privilege constitutes a total of five sentences, two of which merely provide the background holding of Senate Select and Nixon. But after the Supreme Court’s reinterpretation of the D.C. Circuit opinion, the three remaining sentences of analysis now bear the entire weight of the D.C. Circuit’s ruling and the Supreme Court’s decision not to intervene. The rest is “nonbinding dicta” as declared by the Supreme Court. In other words, the Supreme Court avoided the unprecedented and difficult questions about a former president’s authority to assert privilege because it appeared to find the analysis and resolution set out in these three sentences uncontroversial and straightforward, relying largely on the need of the committee to investigate the extraordinary events of January 6.

But, as explained below, the analysis in those three sentences is itself unprecedented and a subject of considerable controversy between the branches. The Supreme Court’s endorsement of that analysis is potentially quite significant for executive privilege in the future.

III. The Legacy of the January 6
Investigation Precedents

These precedents, particularly in combination, form a powerful legacy for the January 6 investigation about the scope of Congress’s oversight authority, appropriate uses of that authority, and the ability of the executive branch or executive branch officials to resist that inquiry through executive privilege and related doctrines. Perhaps most importantly, all three branches vigorously defended the authority of a congressional committee to conduct a backward-looking, fact-intensive investigation into the events of January 6 and to demand all materials necessary for a full accounting of those events. After Mazars, such a uniform statement clarifies and affirms congressional authority that the executive branch has often questioned in the past.

On the other hand, the committee’s investigation also illustrated and reaffirmed the fact that the effectiveness of congressional oversight depends almost entirely on the cooperation of the executive branch. Most prominently, the refusal of the Justice Department to prosecute Meadows and Scavino or even explain its reasoning for taking that position demonstrates its complete control over contempt. Criminal contempt of Congress exists as a realistic consequence of noncompliance with a congressional subpoena only if the Justice Department wants it to be. Moreover, without the White House’s assistance and sympathetic, copartisan control of executive branch agencies, the committee would have been frustrated in almost all of its endeavors. Without the Remus letters directing the Archivist to provide Trump’s presidential records to the committee, for example, the committee would likely not have obtained them. Nor would former high-level Justice Department officials have testified without authorization from the department. Because a Democratic administration occupied the White House, however, the committee’s dependency on the executive branch was not as evident throughout the investigation, aside from the rare instances in which the executive branch flexed its authority such as the Meadows declination.

Nevertheless, the January 6 precedents will be a useful weapon in Congress’s historical arsenal going forward. The precedents do not just acknowledge Congress’s interest in the information but characterize that interest as a compelling need sufficient to overcome executive privilege. These are the first written precedents determining that an assertion of executive privilege has been overcome by a showing of congressional need for its legislative purposes, and, as such, they potentially cabin future executive branch arguments trying to limit Nixon to the criminal context. In addition, again with all three branches involved, a former executive branch official claiming executive privilege was indicted and prosecuted for contempt of Congress, another first. Although the final resolution of these contempt prosecutions and appeals will alter and shape the importance of these precedents for contempt, the fact that the indictments and prosecutions occurred at all sets an important precedent.

The precedents established by the January 6 investigation will be of undoubted significance to future congressional oversight controversies and cases. But the extent of that significance may also depend on—or may be manipulated by—the underlying characterization of the events of January 6. As the final section of this Part demonstrates, one way to limit the importance of the January 6 oversight precedents is to emphasize the unprecedented nature of the attack on the U.S. Capitol. The rules and norms of normal oversight are riddled with exceptions, and the January 6 precedents could be characterized as derivative of an exception with little relevance to traditional oversight

Affirmation of Congress’s Compelling
Need for a Historical Accounting

The resolution establishing the January 6 committee explicitly states that the purpose of the select committee is to conduct a full, historical accounting of the facts related to January 6.[130] The first purposes stated is to “investigate and report upon the facts, circumstances, and causes ‘relating to the January 6, 2021, domestic terrorist attack upon the United States Capitol Complex.’”[131] The second purpose of the committee is to “examine and evaluate evidence . . . regarding the facts and circumstances” surrounding the attack on the Capitol, and the third purpose is to “build upon the investigations of other entities” into the attacks.[132] Nowhere in the purposes section of the authorizing resolution is a charge to develop or consider legislation or legislative solutions. The purposes of the committee are very clearly investigatory and related to discovering and collecting facts. The principal purpose of the committee is to conduct a historical accounting of the attack, a purpose that mirrors past congressional, executive, and hybrid commissions charged with similar undertakings.

Of course, as the D.C. Circuit highlights, the authorizing resolution certainly contemplates that the committee will report on its findings and include recommendations about action that should be taken. The “functions” of the committee, defined in the next section, include issuing a final report that includes the factual findings as well as “recommendations for corrective measures,” which are later defined to include changes in law, policy, procedures, rules, or regulations.[133] As the D.C. Circuit recognized, those functions are certainly legislative, and there are myriad ways in which the investigation might lead to legislation.[134] There is thus very little doubt that the committee’s investigation fits within the scope of oversight authority outlined in Mazars.

But the legacy of the January 6 precedents for congressional oversight authority is more granular. Mazars and past executive branch precedents similarly acknowledge that this type of broad purpose is within congressional oversight authority but question the fit between that purpose and the need for particular types of information. Numerous opinions in support of presidential assertions of executive privilege make this argument explicitly.[135] They do not question the general purpose of Congress but question—and ultimately reject—the contention that the congressional committee has a compelling need to reconstruct past facts or to possess and read the documents at issue when the executive branch has provided a summary briefing of them. Prior to January 6, there have been few, if any, executive branch or judicial precedents that conclude Congress not only has authority to ask for but also has a substantial interest in a full accounting of past fact and full access to primary documents.

In this way, the Remus letters, the Meadows Brief, and the Supreme Court affirmation of the D.C. Circuit’s balancing analysis legitimize and affirm a role—indeed, a compelling need—for Congress to conduct this type of historical accounting. Unlike past parallels—such as the 9/11 Commission or the Warren Commission—the January 6 committee is a purely legislative entity created and appointed wholly within Congress and the investigation has resulted in written, public precedent by all three branches upholding and validating the compelling need of the committee for this information. The 9/11 Commission ultimately got access to highly sensitive documents—including the PDBs that were the subject of considerable negotiation—and testimony from high-ranking officials, including a voluntary interview with President Bush and Vice President Cheney.[136] Although those facts set a precedent themselves, they were not accompanied by letters from White House counsel setting out the legal rationale for providing those documents, briefs from the Department of Justice explicitly finding the committee met any required showing of need, or judicial opinions reaching the same conclusion.

The legacy of the January 6 investigation may thus prove to be more potent. All three branches are on record supporting the compelling need of the committee to conduct its factual investigation and provide a full accounting to Congress and the American people, including by having access to all available, relevant evidence. That exceedingly rare public agreement among all three branches sets a powerful precedent about congressional authority for the future.

Diminishment of Senate Select and Extension
of Nixon to Legislative Subpoenas

Prior to January 6, the executive branch had contended that a congressional committee had to show that sought-after information was “demonstrably critical” to the committee’s task to overcome an assertion of executive privilege. Although not entirely clear from the language itself, the executive branch regarded this standard as more difficult to meet than the standard set out in Nixon, which required only that the need be “specific and central” to the committee’s function. The executive branch thus claimed that the Senate Select standard was (1) more rigorous and (2) largely impossible for a congressional committee pursuing a legislative purpose to meet.

The January 6 precedents cast all of this into doubt. First, the D.C. Circuit’s analysis of the Senate Select standard renders it not only easier to meet than Nixon but so specific to the facts of that case that it would almost never pose a problem for a congressional committee. In those crucial sentences in the D.C. Circuit’s Trump v. Thompson opinion that the Supreme Court elevated to control the entire case, the D.C. Circuit’s analysis syllogism proceeded quite simply: (1) In Senate Select, a House committee already had the tapes, so the Senate Select Committee’s need for them was “cumulative”; (2) no other committee has the information sought by the January 6 committee; (3) therefore, the January 6 committee has shown the information is demonstrably critical to its functions because the evidence would not be cumulative.[137] It is a rare occasion that a privilege dispute arises over evidence sought by a congressional committee that another committee already has. In the D.C. Circuit’s analysis, it appears that—absent that unique situation—the Senate Select standard has been met if the information is relevant. And the Supreme Court’s cursory statement appears to endorse that reasoning.

Moreover, the Justice Department itself appears to adopt a much different understanding of the Senate Select standard in its Meadows Brief than the one to which it has previously adhered. In concluding that the committee’s need for the information overcame Meadows’s qualified immunity, the Justice Department lumped Senate Select together with both Mazars and the D.C. Circuit’s opinion in In re Sealed Case, which applied Nixon to a grand jury subpoena.[138] The Department said all three standards asked the same questions: (1) “whether the subpoena seeks evidence in service of a valid and sufficiently important legislative interest;”[139] (2) “whether that evidence is sufficiently relevant to that interest;”[140] and (3) “whether the party seeking the evidence has shown that it could not reasonably be obtained elsewhere.”[141] Absent are past claims about a congressional entity not needing every available piece of evidence to pursue a legislative purpose. And the Department, somewhat strikingly, even advocates for deference to the committee on whether it could get the necessary evidence elsewhere.[142] In the past, the Department has often based privilege claims on the executive branch’s own determination that the information sought is available through other means.[143]

The crucial sentences in the D.C. Circuit’s opinion also applied the standard set out in Nixon to find that the committee had overcome any potential claim of privilege. It reasoned that the committee had sufficiently demonstrated a “specific and compelling” need for the presidential documents at issue solely because they provided a “unique and critically important window into the events of January 6th that the Committee c[ould] not obtain elsewhere.”[144] And the Meadows Brief did not distinguish between Senate Select and Nixon in weighing the committee’s needs against the claim of constitutional immunity, instead finding it sufficient that the committee had a need for information that the committee felt it could not obtain elsewhere.[145]

Nixon largely sets up a contrast between “generalized” need for confidentiality in presidential communications and the “specific facts” that are “central” to the grand jury inquiry, holding that the latter need prevails over the former.[146] The January 6 precedents are the first time that the Nixon standard, or something very much resembling it, has been applied to a congressional subpoena in pursuance of a legislative objective. The executive branch has long resisted that extension, emphasizing instead what it understood to be a much more difficult standard to meet set out in Senate Select. But the January 6 precedents seem to erode, if not eliminate, that potential distinction. The arguments that Senate Select is (1) the sole appropriate standard by which to judge the need of Congress in the context of a privilege claim and (2) a higher standard to meet than Nixon or even Mazars may no longer be tenable after the January 6 precedents.

Contempt, Testimonial Immunity, and
Congressional Inability to Enforce Subpoenas

The legacy of the January 6 precedents involving subpoenas to seniors Trump advisers—and ultimately the former president himself—is somewhat mixed. On one hand, the committee successfully referred two former Trump advisers to the Justice Department for prosecution for contempt of Congress, one of whom—Navarro—was a senior adviser to the president during the relevant period. No such prosecutions had ever moved forward previously. The Justice Department adopted—successfully—an interpretation of the contempt statute that is extremely favorable to Congress and essentially establishes strict liability for any defendant who knowingly refuses to comply with a congressional subpoena, no matter their good faith. Given the ambiguity of executive privilege and related doctrines such as immunity, recalcitrant executive branch witnesses can almost always argue that they were acting out of a good faith belief that they did not have to comply with a congressional subpoena. But the Justice Department and the district court have now rejected that argument firmly in the context of criminal contempt of Congress.

Moreover, the Justice Department conceded in the Meadows Brief—for the first time—that its absolute doctrine of testimonial immunity is not always absolute.[147] The Justice Department’s reasoning—that the separation of powers concerns are reduced when considering a senior adviser to a former president—casts significant doubt on its own existing precedent holding former presidents and former advisers to sitting presidents have absolute immunity. Courts have already resoundingly rejected the absolute immunity doctrine,[148] and the Meadows Brief cracks the door for the Justice Department itself to potentially reconsider it, particularly in its absolute form. And, as noted above, if the immunity is not absolute, then Congress now has precedent to establish a legislative need sufficient to overcome it. The Meadows Brief lays that groundwork and establishes that precedent for future congressional committees.

These victories are somewhat undermined by the committee’s high-profile failure to procure the testimony of Meadows or Scavino and the lack of any consequences for their refusal to testify. The Justice Department declined—without explanation—to prosecute either Meadows or Scavino for refusing to comply with the committee’s subpoenas, despite the fact that the House referred them for prosecution and both former Trump advisers refused to even appear for a subpoenaed deposition. Indeed, Scavino does not appear to have provided a single document to the committee. Despite these highly relevant witnesses essentially blowing off the committee’s subpoenas, they suffered no consequence.

What these mixed precedents demonstrate is that the criminal contempt of Congress statute has teeth only when the executive branch is aligned with Congress, a necessary condition that is seldom fulfilled in executive privilege disputes. Even though the Justice Department publicly determined Meadows had no immunity, it still refused to prosecute him, likely because the weight of past OLC opinions suggested he could rely on former president Trump’s directive to him to claim immunity and privilege.

The timeline of the January 6 committee—driven to be able to complete its investigation before the 2022 election because of the chance Republicans would take the House and disband the committee—made it unrealistic for the committee to pursue civil contempt actions to force testimony from Meadows, Scavino, or even Trump himself. Perhaps if the committee had initiated the process at the outset, it could have achieved judicial victories. But it would not have been able to develop the factual predicate showing how essential their testimony was to its mission at that early stage. The threat of criminal contempt was thus the only concrete incentive the committee had to force testimony. And that threat was empty when it came to the most important witnesses.

The legacy of the January 6 committee for contempt of Congress remains uncertain. Appeals are still playing out, and it is possible the Justice Department will later release opinions explaining its rationale and reframing these historical precedents in doctrinal terms for the future. The committee achieved great success in procuring information and leveraging both its fact-finding mission and its power of contempt to persuade witnesses to come forward. But given how much its enforcement power depended on a cooperative executive, the committee’s work should also lead to a wider recognition of Congress’s impotence when it comes to enforcing its subpoenas without an aligned Justice Department. That recognition may itself lay the groundwork for reforms, such as a reinvigoration of inherent contempt[149] or statutory reforms like expedited civil contempt[150] or even provisions that would allow Congress itself to prosecute for criminal contempt.[151] The immunity doctrine and the lack of congressional enforcement mechanisms have already been highlighted by members of Congress looking at such reforms.[152] The fact that even the January 6 committee—with an extraordinary, compelling need to conduct a full historical investigation recognized by all three branches—cannot compel testimony from the individuals who have perhaps the most pertinent information is a vivid demonstration and significant precedent of congressional weakness, perhaps the most significant precedent affirming that weakness going forward.

Potential Limitations on the January 6
Legacy: A Note of Caution

These are all potential legacies of the January 6 investigation. But it is also relatively easy to understand why that potential may not be fully realized. The Remus letters, Meadows Brief, and D.C. Circuit opinion in Trump v. Thompson all rely heavily on the extraordinary nature of the events of January 6. The Remus letter is saturated with adjectives—“extraordinary,” “unprecedented,” “unique,” “far beyond typical”—that situate the events of January 6 in a wholly different legal framework. The D.C. Circuit’s opinion, particularly the passages elevated by the Supreme Court, undertakes a similar endeavor. And the Meadows Brief does the same.

Disputes over congressional oversight and executive privilege occur within two nested frameworks. First, the relatively few judicial precedents establish broad outlines that define the boundaries of the arguments. But, second, and most importantly, specific historical precedents and intrabranch constitutional positions define the precise application of those broader precedents to new circumstances. The more “extraordinary” and sui generis the events of January 6 are, the less relevance they have in that second-level analysis. In other words, the majority of executive privilege disputes occur through argument by analogy. But if January 6 is not analogous to anything, the precedents it generated are much less important.

Ironically, the more important and unprecedented the events of January 6 are understood to be, the less important the precedents of the January 6 investigation become. The two are inversely related. And the executive branch precedents arising out of the January 6 investigation—no doubt purposefully—are explicit in their stark recognition of how shocking and significant the attack on the Capitol was on January 6. As a result, they leave the Justice Department ample room to distinguish them in the future if it wishes to support the withholding of documents or testimony from Congress.

With that recognition, however, the January 6 precedents will not be as easily discarded as sui generis as some other past historical precedents, such as the 9/11 Commission. As described, the January 6 precedents are not merely historical facts. They are written, public legal analyses by all three branches—analyses that largely agree on the compelling nature of congressional need in pursuing an exhaustive factual investigation and historical accounting and the somewhat lower showing of need Congress needs to make to overcome constitutional claims of privilege in furtherance of those legislative ends. The Justice Department, in support of the efforts and purpose of the January 6 investigation, publicly took positions that it cannot easily walk back and approved of rationales that will be applied against it in the future. Moreover, the D.C. Circuit’s favorable analysis of congressional need in Trump v. Thompson and the strange manner by which the Supreme Court appeared to endorse that specific analysis will be a significant weapon for Congress to use in future oversight disputes.

The legacy of the January 6 investigation for executive privilege and congressional oversight is still being written. And there will undoubtedly be unexpected consequences arising out of these precedents and unforeseen applications. But the one certainty at this point in history is that the January 6 investigation will have a significant legacy for future disputes over privilege and oversight. Regardless of the disputes that arise, Congress and the executive branch will have to acknowledge and address these precedents in almost any legal analysis of the boundaries of privilege and oversight in the future. That alone is a significant legacy.

[1]. Assistant Professor of Law, University of Kentucky J. David Rosenberg College of Law.

[2]. See Jonathan David Shaub, Executive Privilege is Lawless, Atlantic (Jan. 20, 2022), https://www.theatlantic.com/ideas/archive/2022/01/executive-privilege-does-not-have-to-be-lawless/621315/.

[3]. The House of Representatives established the Select Committee to Investigate the January 6th Attack on the U.S. Capitol on Jun. 30, 2021. See H. R. Res. 503, § 3, 117th Cong. (Jun. 30, 2021).

[4]. See, e.g., Shaub, supra note 2; Elizabeth McElvein & Benjamin Wittes, Trump Loses Big on Executive Privilege, Lawfare (Jan. 20, 2022, 3:04 PM), https://www.lawfareblog.com/trump-loses-big-executive-privilege; Michael Stern, The Absence of Any Executive Privilege by a Former President for National Security Secrets, Just Security (Sept. 9, 2022), https://www.justsecurity.org/83012/the-absence-of-any-executive-privilege-by-a-former-president-for-national-security-secrets/; Kate Shaw, The Executive-Privilege Paradox, Atlantic (Oct. 15, 2021), https://www.theatlantic.com/ ideas/archive/2021/10/january-6-trump-executive-privilege-biden/620393/.

[5]. See Nixon v. Admin. of Gen. Svcs., 433 U.S. 425 (1977); United States v. Nixon, 418 U.S. 683 (1974); Senate Select Comm. on Presidential Campaign Activities v. Nixon, 498 F.2d 725 (D.C. Cir. 1974) (en banc).

[6]. There are partisan divides in the public perception of January 6, see Jennifer Agiesta, January 6 Hearings Haven’t Changed Opinion Much, But Most Agree Trump Acted Unethically, CNN (Jul. 26, 2022, 7:50 PM), https://www.cnn.com/2022/ 07/26/politics/cnn-poll-january-6-trump (collecting polling data). That partisan divide could exacerbate this potential phenomenon and feed the existing political convenience of the parties in the near term. For example, because Republicans retook the House in the 2022 mid-term election and generally view the events as less extraordinary, they may assert that the precedents set during the January 6 investigation apply more widely. Democrats, by contrast, who generally view the events of January 6 as more extraordinary and historic, may reject the application of those precedents.

[7]. See NLRB v. Noel Canning, 573 U.S. 513, 526 (2014) (hesitating when addressing an interbranch dispute “to upset the compromises and working arrangements that the elected branches of Government themselves have reached”); Curtis A. Bradley & Trevor W. Morrison, Historical Gloss and the Separation of Powers, 126 Harv. L. Rev. 411, 417–18 (2012) (highlighting the significance of history for interpreting the separation of powers, a subject on which the Constitution provides little guidance). I have described at length how the executive branch’s internal constitutional doctrine largely governs the practice of executive privilege and how that doctrine has been shaped by historical precedent. See Jonathan Davis Shaub, The Executive’s Privilege, 70 Duke L.J. 1, 8–27 (2020).

[8]. I have discussed Congress’s impotence vis-à-vis the executive branch at length. See Shaub, supra note 7, at 32–51.

[9]. Trump v. Mazars USA, LLP, 140 S. Ct. 2019 (2020).

[10]. Id. at 2031–33; see also Trump v. Thompson, 20 F.4th 10, 24–25 (D.C. Cir. 2021).

[11]. See Christopher Davis, Todd Garvey, & Ben Wilhelm, Cong. Rsch. Serv. RL30240, Congressional Oversight Manual 64–65 (2021), available at https://sgp.fas.org/crs/misc/RL30240.pdf [hereinafter Oversight Manual]; Mark J. Rozell, Executive Privilege: Presidential Power, Secrecy, and Accountability (3d ed. 2010) (providing an in-depth history and analysis of executive privilege and its relation to the proper scope and limits of presidential power).

[12]. See, e.g., Exclusion of Agency Counsel from Congressional Depositions in the Impeachment Context, 43 Op. O.L.C. ___ (Nov. 1, 2019) (extending executive privilege and related doctrines to the impeachment context); Assertion of Executive Privilege over Deliberative Materials Regarding Inclusion of Citizenship Question on 2020 Census Questionnaire, 43 Op. O.L.C. ___ (Jun. 11, 2019) [hereinafter Census Assertion]; Comm. on the Judiciary v. McGahn, 415 F. Supp. 3d 148 (D.D.C. 2019), aff’d en banc 9968 F.3d 755 (D.C. Cir. 2020) (en banc) (discussing the dispute over a subpoena for former White House counsel Don McGahn’s testimony); see also Jonathan Shaub, The Prophylactic Executive Privilege, Lawfare (Jun. 14, 2019, 5:18 PM), https://www.lawfareblog.com/ prophylactic-executive-privilege.

[13]. See, e.g., Congressional Oversight of the White House, 45 Op. O.L.C. ___ (Jan. 8, 2021) (opining that the “executive branch must scrutinize the asserted legislative purpose underlying a congressional request” and that the “activities of White House advisers are less likely” than agency activities “to involve matters within Congress’s oversight authority”); House Committees’ Authority to Investigate for Impeachment, 44 Op. O.L.C. ___ (Jan. 19, 2020) (rejecting the committees’ asserted legislative purposes and determining the committees were—invalidly—seeking information “to further an impeachment inquiry”); Congressional Committee’s Request for the President’s Tax Returns Under 26 U.S.C. § 6103(f), 43 Op. O.L.C.(Jun. 13, 2019) (concluding a congressional committee’s asserted interest was “pretextual” and the committee’s “true aim . . . was not a legitimate legislative purpose”).

[14]. Trump v. Mazars USA, LLP, 140 S. Ct. 2019 (2020).

[15]. See McGrain v. Daugherty, 273 U.S. 135, 174 (1927) (“We are of opinion that the power of inquiry—with process to enforce it—is an essential and appropriate auxiliary to the legislative function.”); Eastland v. United States Servicemen’s Fund, 421 U.S. 491, 504 n.15 (1975) (“Although the power to investigate is necessarily broad it is not unlimited. . . . We have made it clear [] that Congress is not invested with a ‘general’ power to inquire into private affairs.’ The subject of any inquiry always must be one ‘on which legislation could be had.’”) (citations omitted).

[16]. Watkins v. United States, 354 U.S. 178, 200 n.33 (1957).

[17]. Id. at 187.

[18]. See Oversight Manual, supra note 11, at 3.

[19]. Id. at 197.

[20]. See, e.g., Census Assertion, slip op. at 11.

[21]. See Kilbourn v. Thompson, 103 U.S. 168 (1881)

[22]. Quinn v. United States, 349 U.S. 155, 161 (1955).

[23]. Watkins, 354 U.S. at 200.

[24]. See supra note 10. Previously, the executive branch had only publicly questioned Congress’s legitimate legislative interest when information requests related to an exclusive presidential power, such as the pardon or appointment powers. See Assertion of Executive Privilege Concerning the Dismissal and Replacement of U.S. Attorneys, 31 Op. O.L.C. 1, 3 (2007); Assertion of Executive Privilege with Respect to Clemency Decision, 23 Op. O.L.C. 1, 2 (1999).

[25]. Trump v. Mazars USA, LLP, 140 S. Ct. 2019, 2026–28 (2020).

[26]. Id. at 2029.

[27]. Id. at 2032.

[28]. Id. at 2032–33.

[29]. Id.

[30]. Id. at 2031–32.

[31]. Id.

[32]. Id. at 2032; see David Rapallo, House Rules: Congress & the Attorney-Client Privilege, 100 Wash. Univ. L. Rev. 455, 457 (2022) (discussing Mazars surprising recognition of common law privileges as defenses to congressional subpoenas).

[33]. Mazars, 140 S. Ct. at 2032.

[34]. Id.

[35]. Id. at 2036.

[36]. Id.

[37]. See Shaub, supra note 7, at 29–32; Andrew McCanse Wright, Constitutional Conflict and Congressional Oversight, 98 Marq. L. Rev. 881 (2014).

[38]. Todd Garvey, Cong. Rsch. Serv., R42670, Presidential Claims of Executive Privilege: History, Law, Practice, and Recent Developments 21–23 (2014).

[39]. See Mem. of Points & Auth. in Support of Plaintiffs’ Mot. to Dismiss 19–20, Dkt. 61, Comm. on Oversight & Gov’t Reform v. Lynch, 156 F. Supp. 3d 101 (D.D.C. 2016).

[40]. Id. at 20, 40–41.

[41]. See Shaub, supra note 7, at 20–21.

[42]. Id. at 10–11; see also Fred F. Fielding & Heath P. Tarbert, Principled Accommodation: The Bush Administration’s Approach to Congressional Oversight and Executive Privilege, 32 J.L. & Pol. 95, 101 (2016); Assertion of Exec. Privilege Over Commc’ns Regarding EPA’s Ozone Air Quality Standards & Cal.’s Greenhouse Gas Waiver Request, 32 Op. O.L.C. 1, 3 (2008) (noting the documents over which the President was asserting privilege implicated “both the presidential communications and deliberative process components”); and Letter from Bradley Weinsheimer, Assoc. Deputy Att’y Gen., U.S. Dep’t of Just., to Robert S. Mueller, III, former Special Couns. 2 (Jul. 22, 2019), https://s.wsj.net/public/resources/documents/MuellerLetter07222019.pdf (informing Mueller that “matters within the scope of [his] investigation were covered by executive privilege, including information protected by law enforcement, deliberative process, attorney work product, and presidential communications privileges”).

[43]. 489 F.2d 725 (D.C. Cir. 1974).

[44]. Id. at 731.

[45]. Memorandum for C. Boyden Gray, Counsel to the President, from J. Michael Luttig, Asst. Att’y Gen., Office of Legal Counsel, Re: Congressional Access to Presidential Communications (Dec. 21, 1989) (on file with author).

[46]. See Congressional Requests for Confidential Executive Branch Information, 13 Op. O.L.C. 153, 159 (1989) (“Congress will seldom have any legitimate legislative interest in knowing the precise predecisional positions and statements of particular executive branch officials.”).

[47]. White House Oversight at 26 (quoting Senate Select Comm., 498 F.2d 725 at 732); Census Assertion at 10 (same); Assertion of Exec. Privilege Concerning the Special Couns.’s Interviews of the Vice President & Senior White House Staff, 32 Op. O.L.C. 7, 12–13 (2008) (same).

[48]. Shaub, supra note 7, at 10–11.

[49]. Id. at 53–67.

[50]. See id. at 58–60; Jonathan Shaub, Testimonial Immunity, Executive Privilege, and the President’s Authority over Former Officials, Lawfare (May 22, 2019, 6:34 PM), https://www.lawfareblog.com/testimonial-immunity-executive-privilege-and-presidents-authority-over-former-officials.

[51]. Kyle Cheney & Andrew Desiderio, White House Officials Spurn Demand To Testify in Impeachment Probe, Politico (Nov. 4, 2019, 10:02 AM), https://www.politico.com/news/2019/11/04/white-house-officials-testify-impeachment-065318; Testimonial Immunity Before Cong. of the Assistant to the President & Senior Couns. to the President, 43 Op. O.L.C., slip op. at 3 (Jul. 12, 2019) (concluding that Kellyanne Conway was immune from a subpoena seeking her testimony about Hatch Act violations reported by the Office of Special Counsel because her public press statements were part of her official duties)

[52]. Letter from Steven A. Engel, Assistant Att’y Gen., Off. of Legal Couns., U.S. Dep’t of Just., to Pat A. Cipollone, White House Couns. 1–2 (Nov. 3, 2019) (advising the White House that presidential advisers who had been subpoenaed to testify as part of the impeachment inquiry were immune from those subpoenas).

[53]. Comm. on the Judiciary v. McGahn, 968 F.3d 755 (D.C. Cir. 2020) (en banc); Comm. on the Judiciary v. Miers, 558 F. Supp. 2d 53, 56 (D.D.C. 2008).

[54]. Comm. on the Judiciary v. McGahn, 951 F.3d 510, 537–542 (D.C. Cir. 2020) (Henderson, J., concurring) (concurring to note that absolute immunity rests on “somewhat shaky legal ground”), rev’d and remanded by, 973 F.3d 121 (D.C. Cir.), rehearing en banc granted, vacated (Oct. 15, 2020); id. at 558 (Rogers, J., dissenting) (finding the immunity argument “foreclosed”); Comm. on the Judiciary v. McGahn, 415 F. Supp. 3d 148, 199–214 (D.D.C. 2019) (Jackson, J.) (painstakingly rejecting all of the Justice Department’s arguments and calling absolute testimonial immunity “a fiction that has been fastidiously maintained over time through the force of sheer repetition in OLC opinion” that has “no basis in law”); Miers, 558 F. Supp. 2d at 99–107 (rejecting the Justice Department’s immunity argument as “virtually foreclosed by the Supreme Court” and “already firmly rejected by the courts”).

[55]. It is quite possible, indeed probable, that OLC has issued or is finalizing formal opinions addressing privilege and related issues raised by the January 6 investigation. But OLC does not always publish its formal opinions or may not do so until some time after the events in question. And even if OLC has not issued any formal opinions, it is quite certain OLC has provided informal legal advice to the White House and the Archivist of the United States, among others, during the January 6 investigation.

[56]. See Letter to David S. Ferriero, Archivist of the United States, from Bennie G. Thompson, Chair, House Select Committee to Investigate the January 6 Attack on the U.S. Capitol (Aug. 25, 2021).

[57]. Pub. L. No. 95-591, 92 Stat. 2523; 44 U.S.C. § 2201–2209.

[58]. See Thompson, 20 F. 4th 10; see also John Langford, Justin Florence, & Erica Newland, Trump’s Presidential Records Act Violations: Short- and Long-Term Solutions, Lawfare (Feb. 18, 2022, 10:54 AM), https://www.lawfareblog.com/trumps-presidential-records-act-violations-short-and-long-term-solutions; Kel McClanahan, Trump and the Demise of the Presidential Records Honor System, Just Security (Mar. 22, 2019), https://www.justsecurity.org/63348/trump-and-the-demise-of-the-presidential-records-honor-system/.

[59]. Dana A. Remus, Letter from Dana A. Remus, Counsel to the President, to David Ferriero, Archivist of the United States, dated October 8, 2021, The White House (Oct. 8, 2021), https://www.whitehouse.gov/briefing-room/statements-releases/2021/10/12/letter-from-dana-a-remus-counsel-to-the-president-to-david-ferriero-archivist-of-the-united-states-dated-october-8-2021/.

[60]. Id.

[61]. Id.

[62]. Id.

[63]. See Daniel Marcus, The 9/11 Commission & the White House: Issues of Executive Privilege and Separation of Powers, 1 Am. Univ. Nat’l Sec. L. Br. 19 (2011) (discussing the White House’s decision to turn over sensitive national security documents to the 9/11 commission and allow National Security Adviser Condoleezza Rice to testify under oath at a public hearing); H.R. Rep. No. 100–433, at xvi (1987) (describing President Reagan’s cooperation with the investigation into the Iran-Contra affair, including by providing pages from his personal diary).

[64]. See In re Sealed Case (Espy), 121 F. 3d 729, 745–46 (D.C. Cir. 1997); see also Assertion of Executive Privilege in Response to Congressional Demands for Law Enforcement Files, 6 Op. O.L.C. 31, 36 (1982) (noting that executive privilege “will not be employed to shield documents which contain evidence of criminal or unethical conduct by agency officials”).

[65]. Remus, supra note 59.

[66]. See H. Rept. 117–216 (Dec. 13, 2021) (resolution holding Meadows in contempt for refusing to comply with the committee’s subpoena) [hereinafter Meadows Contempt Report].

[67]. Id. at 12–19; see also Jonathan Shaub, The January 6 Committee Should Take Its Time with Mark Meadows, Lawfare (Nov. 2, 2021, 1:07 PM), https://www.lawfareblog.com/jan-6-committee-should-take-its-time-mark-meadows.

[68]. George J. Terwilliger III, Opinion, In Abandoning Executive Privilege, Biden Rejects 200 Years of History, Wash. Post (Nov. 13, 2021, 3:30 PM), https://www.washingtonpost.com/opinions/2021/11/13/abandoning-executive-privilege-biden-rejects-200-years-history/.

[69]. Meadows Contempt Report, supra note 66, at 17–19.

[70]. Complaint, Meadows v. Pelosi, No. 1:21-cv-03217-CJN (D.D.C. Dec. 8, 2021).

[71]. Id. at 35–36.

[72]. See Josh Gerstein & Kyle Cheney, Judge Rankled by Jan. 6 Committee Push for Executive Privilege Ruling in Meadows Case, Politico (Sept. 7, 2022, 1:56 PM), https://www.politico.com/news/2022/09/07/judge-jan-6-committee-executive-privilege-meadows-00055223.

[73]. Minute Order, Meadows v. Pelosi, No. 1:21-cv-03217-CJN (D.D.C. Jun. 23, 2022).

[74]. Statement of Interest by the United States, Dkt. 42, Meadows v. Pelosi, No. 1:21-cv-03217-CJN (D.D.C. Jul. 15, 2022) [hereinafter Meadows Brief].

[75]. Id. at 7.

[76]. Id. at 7–8.

[77]. Id. at 9.

[78]. Id. at 11–13 (noting the “events of January 6, 2021 are of immense importance” and noting that the investigation was clearly within Congress’s authority, that Meadows’s testimony was critical to its investigation, and that the committee could not obtain the information sought from Meadows through other means).

[79]. See, e.g., Gojack v. United States, 384 U.S. 702 (1966); Barenblatt v. United States, 360 U.S. 109, 111 (1959); Watkins v. United States, 354 U.S. 178, 187 (1957); Quinn v. United States, 349 U.S. 155, 161 (1955).

[80]. See H. Res. 1037, 117th Cong. (Apr. 6, 2022) (referring Scavino and Navarro for contempt); H. Res. 851, 117th Cong. (Dec. 14, 2021) (referring Meadows for contempt); H. Res. 730, 117th Cong. (Oct. 21, 2022) (referring Bannon for contempt).

[81]. See Press Release 22-224, U.S. Dep’t of Justice (Jul. 22, 2022), https://www.justice.gov/usao-dc/pr/stephen-k-bannon-found-guilty-jury-two-counts-contempt-congress; United States v. Bannon, No. 1:21-cr-00670 (D.D.C. Jul. 22, 2022). Prior to Bannon, the last successful contempt prosecution was of G. Gordon Liddy in 1974. See Anthony Ripley, Liddy Guilty of Contempt of Congress, N.Y. Times, May 11, 1974, at 15.

[82]. Minute Entry, Bannon, No. 1-21-cr-00670 (Oct. 21, 2022).

[83]. See Prosecution for Contempt of Cong. of an Exec. Branch Off. Who Has Asserted a Claim of Exec. Privilege, 8 Op. O.L.C. 101, 101–02 (1984) [hereinafter Olson opinion]. Congress disagrees, however, and views the statute as imposing a mandatory duty on the U.S. Attorney to bring contempt charges before a grand jury.

[84]. United States v. Navarro, No. 1:22-cr-00200 (D.D.C. Jun. 2, 2022).

[85]. Prior to the Bannon and Navarro indictments, the last indictment for contempt of Congress was former EPA official Rita Lavelle in 1983. See Al Kamen, EPA Ex-Official Cleared, Wash. Post (Jul. 23, 1983).

[86]. See Carrie Johnson, Former Trump aide Navarro indicted, but Justice Dept. won’t charge Meadows or Scavino, NPR.org (Jun. 4, 2022, 2:00 PM), https://www.npr.org/2022/06/03/1102923746/former-trump-adviser-navarro-indicted-for-contempt-of-congress-over-jan-6-subpoe.

[87]. See Rohini Kurup & Jonathan Shaub, Dissecting the Justice Department’s Prosecutorial Decisions on Navarro, Meadows, and Scavino, Lawfare
(Jul. 20, 2022, 9:12 PM), https://www.lawfareblog.com/dissecting-justice- departments- prosecutorial-decisions-navarro-meadows-and-scavino-0 (explaining the relevant differences and similarities between Bannon, Navarro, Meadows, and Scavino).

[88]. See Mem. Op. & Order 5-6, Dkt. 55, United States v. Navarro, No. 1:22-cr-00200-APM.

[89]. See 3 U.S.C. § 105.

[90]. The most likely reason appears to be that Navarro, unlike Meadows and Scavino, never received a direction from former president Trump to invoke immunity and executive privilege. For a detailed investigation of this explanation, see Kurup & Shaub, supra note 87. See also Mem. Op. & Order 5, Dkt. 55, United States v. Navarro, No. 1:22-cr-00200-APM (“The fact that [Navarro] received no specific instruction to invoke executive privilege, while Meadows and Scavino did, is a material difference and a legitimate prosecutorial factor that distinguishes [Navarro] from those men.”).

[91]. See Olson opinion, supra note 83.

[92]. See, e.g., Testimonial Immunity Before Congress of the Former Counsel to the President, 43 Op. O.L.C. ___ (May 20, 2019).

[93]. See Josh Hicks, Justice Department will not seek contempt charges against Lois Lerner, Wash. Post (Apr. 1, 2015, 3:25 PM), https://www.washingtonpost.com/ news/federal-eye/wp/2015/04/01/justice-department-will-not-seek-contempt-charges-against-lois-lerner/.

[94]. See Kurup & Shaub, supra note 87 (tracing the novelty of this decision).

[95]. See Notice of Intent to Assert Public Authority Defense, Dkt. 36, United States v. Navarro, 1:22-cr-00200-APM (Aug. 17, 2022); Khorri Atkinson, Rulings Put Bannon’s Contempt Trial on Thin Ice, Law360 (Jul. 13, 2022, 4:49 PM), https://www.law360.com/ articles/1503755/ rulings-put-bannon-s-contempt-trial-defense-on-thin-ice.

[96]. See Atkinson, supra note 95.

[97]. See Roger Parloff, Why Steve Bannon’s Contempt Prosecution Revolves Around His Attorney, Robert J. Costello, Lawfare (Apr. 27, 2022, 2:21 PM).

[98]. See Order at 2–4, United States v. Bannon, Dkt. 49, No. 1:21-cr-00670-CJN (D.D.C. Apr. 6, 2022). Judge Nichols, however, did express skepticism about the continued validity of this precedent, allowing Bannon to remain out on bail because he found it likely he would prevail on this mens rea issue on appeal. Order at 1, United States v. Bannon, Dkt. 168, No. 1:21-cr-00670-CJN (D.D.C. Nov. 07, 2022). At the time of the publication of this essay, Bannon’s appeal remained pending.

[99]. Id.

[100]. Thompson, 20 F. 4th 10.

[101]. Complaint at 18–25, Trump v. Thompson, No. 1:21-cv-02769 (D.D.C. Oct. 18, 2021).

[102]. Thompson, 20 F. 4th 10.

[103]. Trump v. Thompson, 142 S. Ct. 680 (Jan. 19, 2022) (mem.).

[104]. Complaint at 15, Budowich v. Pelosi, No. 1:21-cv-03366-JEB (D.D.C. Dec. 24, 2021).

[105]. See, e.g., Complaint at 29, Meadows v. Pelosi, No. 1:21-cv-03217-CJN (Dec. 8, 2021); Letter to Hon. Bennie G. Thompson, Chair, January 6 Select Committee, from Harry W. MacDougald, Counsel for former Acting Assistant Attorney General Jeffrey Clark (Nov. 12, 2021).

[106]. Complaint at 6, Trump v. Thompson, No. 1:21-cv-02769 (D.D.C. Oct. 18, 2021).

[107]. Id. at 7.

[108]. Thompson, 20 F. 4th 10.

[109]. Application for a Stay 16-20, Trump v. Thompson, No. 21A272 (Jan. 19, 2022).

[110]. Notably, the D.C. Circuit also expressed “significant doubt” that the Mazars analysis applied at all in this context, yet still conducted the Mazars analysis. Id. The fact that the court considered Mazars at all, however, demonstrates the expansion of Mazars expansion of judicial power to review congressional investigations.

[111]. Thompson, 20 F.4th at 42 (offering a list of potential legislative purposes).

[112]. Id. at 42.

[113]. Id.

[114]. Quinta Jurecic & Molly E. Reynolds, Mazars Creep and the Jan. 6 Committee, Lawfare (Feb. 24, 2022, 8:01 AM).

[115]. Trump v. Mazars USA, LLP, 140 S. Ct. 2019, 2037 (2020) (Thomas, J., dissenting).

[116]. See infra Part B.2.

[117]. Thompson, 142 S. Ct. at 680 (mem.).

[118]. Id.

[119]. Id.

[120]. Id.

[121]. Id. at 680–81 (statement of Kavanaugh, J.).

[122]. See supra text accompanying notes 41–43.

[123]. Thompson, 20 F.4th at 40.

[124]. Id. at 40–44; see 44 U.S.C. § 2205(2)(C).

[125]. Thompson, 20 F.4d at 44–45.

[126]. Id.

[127]. Id. at 44.

[128]. Id.

[129]. Id. at 44–45.

[130]. H. Res. 503, 117th Cong. § 3 (Jun. 30, 2021).

[131]. Id.

[132]. Id.

[133]. Id. § 4.

[134]. Thompson, 20 F.4th at 42.

[135]. See supra notes. 42–43.

[136]. See generally Marcus, supra note 63.

[137]. Trump v. Thompson, 20 F.4th 10, 44 (D.C. Cir. 2021).

[138]. Meadows Brief, supra note 74, at 10–12.

[139]. Id. at 11.

[140]. Id.

[141]. Id.

[142]. Id. at 13 (“The Select Committee, of course, is best positioned to demonstrate that the information it requires from Plaintiff is not practically available from another source.”).

[143]. See, e.g., Assertion of Exec. Privilege Over Commc’ns Regarding EPA’s Ozone Air Quality Standards & Cal.’s Greenhouse Gas Waiver Request, 32 Op. O.L.C. 1, 4–5 (2008); Assertion of Exec. Privilege Concerning the Dismissal & Replacement of U.S. Att’ys, 31 Op. O.L.C. 1, 5 (2007).

[144]. Thompson, 20 F.4th at 44–45.

[145]. Meadows Brief, supra note 74, at 13.

[146]. United States v. Nixon, 418 U.S. 683, 712–13 (1974).

[147]. Meadows Brief, supra note 74, at 2.

[148]. See supra note 50.

[149]. See Morton Rosenberg, The Constitution Project, When Congress Comes Calling: A Study on the Principles, Practices, and Pragmatics of Legislative Inquiry 24–25 (2017) (advocating reinvigoration of Congress’s inherent contempt authority); Todd Garvey, Cong. Rsch. Serv., RL34097, Congress’s Contempt Power and the Enforcement of Congressional Subpoenas: Law, History, Practice, and Procedure 4, 8 & n.65, 20 (2017) (explaining the differences between inherent and criminal contempt).

[150]. I have advocated for the passage of pending legislation that would expedite privilege disputes and perhaps result in judicial precedents that provide more clarity about—and establish more law governing—executive privilege. See Shaub, supra note 2.

[151]. The Supreme Court has held that courts have the inherent power to prosecute individuals for contempt of court. See Young v. U.S. ex rel. Vuitton et Fils, 481 U.S. 787 (1987). The Justice Department would undoubtedly reject any such attempt by Congress to interfere in matters of criminal prosecution as a violation of the separation of powers and an infringement on the executive power. See Prosecution for Contempt of Congress, supra note 79, at 113–138.

[152]. See Breaking the Logjam Part 2: The Office of Legal Counsel’s Role in Shaping Executive Privilege Doctrine; Hearings Before the Subcomm. on Fed. Courts, Oversight, Agency Action, and Fed. Rights, S. Comm. on the Judiciary, 117th Cong. (2022) (statement of Sen. Whitehouse).