By Audrey Hall
Photo Credit: Gage Skidmore
55% of surveyed Americans agree that the single greatest threat to modern-day American democracy transpired on January 6th, 2021 when Pro-Trump rioters breached the U.S. Capitol to undermine the electoral vote ratification process.
In an effort to ascertain how such an insurrection could have occurred in modern-day America, The U.S. House Select Committee was assembled to investigate the January 6th attack on the United States Capitol. Attempting to acquire all necessary information regarding the insurrection, the Committee subpoenaed records from former Trump administration advisors, associates, officials, and January 6th rally organizers. To date, former President Trump is resisting all such Committee efforts by encouraging his former associates, advisors, and loyalists to refuse to comply with the Committee subpoena requests.
Trump critics suggest that he incited his supporters to riot and breach the Capitol, as well that his involvement and efforts in the riots were premeditated. Additionally, his detractors claim that he refused to stop the mob and diffuse the increasingly dangerous situation in order to undermine the electoral process. With much caterwauling and indignation, former President Trump has made it known that he believes such documents and information are irrelevant to the Committee. Trump’s attorney Jesse Binnall stated that the Committee “has decided to harass President Trump …by sending an illegal, unfounded, and overbroad records request to the Archivist of the United States.” When the request for records was initially addressed at the executive level, current President Joe Biden chose not to exercise his executive privilege to stop their release to the January 6th Committee. Rather, he showed his support for the Committee by approving the request to investigate the records.
One controversial tactic taken by former President Donald Trump to avoid abiding by the Committee’s subpoena requests has been to claim executive privilege. Executive privilege “is the power of the President and other officials in the executive branch to withhold certain forms of confidential communication from the courts and the legislative branch.” It is rare for a non-sitting president to claim executive privilege, especially in light of the fact that the current president refuses to claim executive privilege with regard to this matter. Within the scope of U.S. history there have only been a handful of cases in which a former executive body has retroactively claimed authority to deny congressional subpoenas. This forces us to confront challenging and exigent questions including: Who holds supremacy? Does the executive branch have to comply with all congressional subpoenas, or can there exist a certain degree of noncompliance? Executive privilege, which can be a tricky and situational exercise, is defined as either the sitting president or a former president during whose term an allegedly privileged document was created may assert privilege, but can more simply be understood as a way in which the executive branch can fail to comply with other branches. It is with this presidential privilege on which Trump stakes his claim, but given the relatively uncharted legal territory we are wading into it is difficult to determine how the courts might rule.
The Jan. 6th Committee has communicated that they will not hesitate to utilize bellicose methods to acquire these records from Trump and his entourage if needed. The Trump faction is arguing that the records which the Committee is seeking are irrelevant to the scope of the investigation. The lawsuit asks the District Court to “invalidate the Committee’s request” and withhold the “inconsequential” records. The Committee has aired its disagreement over Trump’s claims and has indicated that it will continue to pursue its request.
Monumental implications and consequences can arise with the fall of democracy, implications that would not only be heard on a domestic level but would ring internationally. Many developing nations around the world look to the American justice system as a standard for democratic justice and a model for institutional reform and societal stability. There are many agencies and national organizations that specialize in assisting foreign countries in ways that build and bolster democratic foundations. One of the most critical entities, the United States Agency for International Development (USAID) supports the development of nations by providing aid to help build well-informed and economically stable governments, and has a track-record of “providing democracy and governance assistance to 36 of the 57 nations that successfully made the transition to democratic government from 1980 to 1995.” USAID has contributed to improving healthcare, food security, sustainability, economic growth, education, democracy, and self-governance around the world. Efforts such as these help reinforce the positive associations that many global citizens hold with regard to the United States. Given presidential authority to determine how agencies such as USAID are employed abroad, the fight between the January 6th Committee and former President Trump could in fact impact the broad executive powers that currently provide this ability.
Following the January 6th riot the world’s view of American democracy has changed. Commentary since the insurrection has overwhelmingly focused on its domestic implications for American citizens. Far less attention has been devoted to understanding its international resonance and how this may affect democratic trajectories abroad. Polls taken in the wake of the insurrection regarding U.S. political stability highlighted a dramatic decrease in trust and security in U.S. democracy both domestically and internationally. As David Reibstein and Suneal Bedi write, “As expected, the world perceives the U.S. as even more politically unstable after the attempt by its citizens to change the election using violence — its ranking dropped from No. 25 to No. 38.” There has been a large decrease on the international level regarding views on American democracy’s stability, discussed by Reibstein and Bedi’s, as the United States “had the largest fall since last year of any country in its perceived political stability, from No. 17 in 2020 to No. 28 in 2021.”American political stability is on a downward trajectory. The most recent data from the Fragile States Index for 2019 which measures fragility, risk, and vulnerability in 178 countries, shows a decrease in stability in the United States. It is anticipated that, “Given the pandemic, recession, protests, and political turmoil, the FSI 2020 score, which hasn’t been calculated yet, will likely drop further.” American democracy is not facing existential danger, however it is confronting its fragility in perhaps its most sobering moment.
After being involved in more than 4,000 lawsuits, there is no denying that former President Trump knows how to maneuver around a courtroom, and use the protracted nature of the legal system to skirt culpability and cast doubt on the legitimacy of his opponents’ lawsuits. The Trump playbook is nothing new and should come as no surprise. However, this time the ramifications encompass more than mere steaks and golf clubs. This time the outcome will likely impact future dynamics of the federal government, and set a precedent for acceptable executive branch authority and its accountability within the federalist system. But even more so, the implications of this case will be felt globally, by all developing democracies who look to the United States to uphold the standards of integrity and accountability pioneered through its justice system, and so central to democratic prosperity. Ironically, the man who popularized a “Make America Great Again” dogma that has become synonymous with the degradation of democratic institutions may in fact wind up leaving a legacy of democratic revitalization if the precedent that is set by this case explicitly curbs the executive’s authority to defy congressional and judicial restraints. All eyes will be on this case and on Trump moving forward – which is all the former president ever wanted to begin with.