Alan Zendell, September 23, 2021

Aside from occasionally exceeding the speed limit or failing to report a few gratuities to IRS, most Americans are law-abiding citizens. As one such citizen, ask yourself what you would do if you were wrongfully accused of a crime or some other act that might damage your reputation or cause you financial harm. If you knew you were innocent and evidence, both documentary and from testimony or deposition would support your innocence, would you fight disclosure? Would you assemble a high-priced legal team to fight every legally issued subpoena and request for information? Would you scream unfair persecution and fake news or spend millions filing lawsuits against your accusers on every frivolous thing you could think of to create diversions, or trust the legal process to exonerate you?

Most of us don’t have millions to waste on such nonsense, and if we did, would we drag the whole country through the mud and create unprecedented turmoil to obfuscate the truth if we knew we were innocent? Would we continue to file suits and accuse everyone else of lying despite months of having all our accusations debunked and losing every case we brought before a judge? In America, we’re not supposed to pre-judge the evidence, but most of us would call the fire department if we saw smoke pouring from our neighbor’s windows, even if we didn’t see flames. And if we saw thousands of people storming the Capitol in support of a losing presidential candidate’s lies, we sure as hell would want to know if the candidate himself was guilty of inciting the insurrection.

President Biden agrees, and as a result, is willing to wade into what promises to be a prolonged fight over presidential privilege to assure that all evidence related to the January 6th insurrection comes to light. Today’s Washington Post reports that “the president views the attack on the Capitol as ‘a dark stain on our country’s history’ and is ‘deeply committed to ensuring that something like that can never happen again, and he supports a thorough investigation.’”

The Select House Committee on the January 6th Attack is gathering all available evidence to determine who planned and executed it, and whether their motivation was to undermine the Constitution and/or stage a coup. Their targets of interest include right-wing activist groups, members of Congress, former President Trump, and members of his administration. Trump, following his typical pattern, cries unfair persecution by the media and political assassination. He is threatening to claim presidential privilege to prevent evidence from being released to the committee.

If this were an isolated incident, we might initially give Trump the benefit of the doubt – in America, you’re innocent until proven guilty. But it’s not isolated. Trump fought tooth and nail to prevent information about his taxes from being released, contravening a tradition that every president from Gerald Ford to Barack Obama acceded to, and he launched a lawsuit against the New York Times and his niece, Mary Trump for publishing his legally obtained tax records. He also claimed presidential privilege when Robert Mueller attempted to interview people close to him and when testimony was sought about his dealings with Ukraine in his first impeachment.

The next ninety days will likely be consumed with legal arguments over presidential privilege. According to former U.S. federal judge, J. Michael Luttig, “With a few notable exceptions, the historical practice has been for Presidents to avoid asserting Executive Privilege to protect from disclosure information that suggests wrongdoing or potential wrongdoing by a President and/or his advisers.” Additionally, most legal scholars believe that presidential privilege does not apply to former presidents, and the final decision on whether privilege applies in the January 6th investigation will belong to the current president, Joe Biden. If they’re right, (it will likely be the courts that decide,) Biden would have the final say on whether information or testimony shedding light on Trump’s actions with respect to the insurrection are admissible.

Fasten your seatbelts. Congrressional rules may delay the final outcome of the presidential privilege debate until the end of 2021, but once it’s concluded, the nation will learn unequivocally whether its former president deliberately fomented the attack on the Capitol, and which members of Congress may have abetted the crime. The stain Biden referred to will only get bigger and more foul-smelling, but it is essential for the truth to come out. As Biden said, this (the insurrection) can never be allowed to happen again. People on all political sides ought to want to know the truth.