“The book of prior decisions by the courts about presidential disagreements over confidentiality is an empty book,” said Peter Shane, an Ohio State University law professor and co-author of a casebook on separation of powers law. “I don’t think there has ever been such a case adjudicated by a court.”
Mr. Trump’s lawsuit names as defendants Representative Bennie Thompson, the Mississippi Democrat who is chairman of the special House committee investigating the attack, and David S. Ferriero, the head of the National Archives.
At issue is what the former president was doing and saying before and during the run-up to the Jan. 6 riot, when throngs of his supporters breached the Capitol, hunting for lawmakers and Vice President Mike Pence in an effort to get them to overturn the election, and brutalizing police officers in the name of Mr. Trump.
Mr. Trump, who had engaged in an intensive effort to use the Justice Department to invalidate the election results, and had privately pushed Mr. Pence to do so himself, had urged his followers to converge on Washington for a “Stop the Steal” rally that day. At that gathering near the White House, he told them that they needed to “fight much harder” against “bad people” and “show strength” at the Capitol, and that “very different rules” applied, among other things.
The House impeached him for inciting the riot, but the Senate acquitted him.
Among the documents the House investigators are seeking are:
calendars, schedules and movement logs about virtual or in-person meetings or events Mr. Trump attended, including who was present.
any documents and communications between the White House and some of Mr. Trump’s allies most involved in trying to undermine the election, including Stephen K. Bannon, his former chief strategist; Michael T. Flynn, his former national security adviser; Rudolph W. Giuliani, who was his personal lawyer; and his longtime associate Roger J. Stone Jr.
White House communications with Mike Lindell, the MyPillow chief executive and confidante of Mr. Trump, and the lawyer Sidney Powell, both of whom pushed lies and conspiracy theories about widespread election fraud.
records on extremist groups and militias that were present at the Capitol that day, including QAnon, the Proud Boys, Stop the Steal, the Oath Keepers and the Three Percenters.
Mr. Trump has told former aides and advisers that they should not cooperate because the information requested is privileged. On Tuesday, the select committee is expected to vote to recommend that Mr. Bannon face criminal contempt charges for defying a subpoena. That would send the citation to the full House, where Democrats have the votes to approve it and refer the matter to the Justice Department with a request for legal action.
While executive privilege is not mentioned in the Constitution, the Supreme Court has recognized that presidents have some constitutional powers to keep confidential information about their deliberations with their advisers and high-level executive branch activities related to the performance of their constitutional duties.
The idea is that a zone of secrecy is necessary to protect the institution because fear of future exposure could chill the candor of deliberations and advice.