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Last week, this site reported on the fact that there was a fight between the NYT and Steve Bannon’s defense team over whether the court had a duty to release the documents that the Select Committee provided to the court demonstrating a need to interview Bannon and the basis for the contempt charge.

The Committee prefers that the evidence remain secret so that future witnesses have less foreknowledge as to what is already known.

The government would have had to provide similar documents to the D.C. Circuit Court of Appeals in demonstrating why President Biden should determine what materials are or are not protected by executive privilege. We cannot know whether the documents or information are of the type that is already floating around the media ecosystem or secret information held tightly by the Select Committee as their work product. We can only know that the documentation was enough for the DC Court of Appeals to draw a straight line between the Trump White House and the attack on the Capitol.

At first glance, this direct line may seem somewhat obvious, but courts often keep rulings so tightly written that it’s nearly impossible to get their overall impression, and that would be especially true in a politically charged case that involves Trump’s role in the January 6th attack and how it relates to executive privilege.  But this Court left little doubt that it saw a straight line.

The court wrote: (Entire Opinion in pdf)

“Then-President Trump called for his supporters to gather in Washington, D.C. for a ‘wild’ response to what he had been alleging for months was a stolen election. On January 6th, President Trump directed his followers to go to the Capitol and ‘fight’ for their Country with the aim of preventing Congress’s certification of the electoral vote.”

That is extremely specific language, even referencing the tweet in which Trump promised it would be “wild.” Additionally, the portion in which the court noted that Trump “directed his followers” sounds a lot like “incited” his followers (even though it is, of course, factually accurate, as Trump even said he would go with his followers to the Capitol), and “incitement” is a key term in any potential criminal charge.

The court then went out of its way to note that one will never be able to tell the full story about January 6th without full documentation from the Trump administration because the White House is somewhat of a nerve center as to the government, saying it is the “the hub for intelligence about threats of violent action against the government, and the Executive Branch is in charge of federal law enforcement and mobilizing the National Guard to defend the Capitol.”

If one reads just one nuanced level below the dry language, one can detect the court saying that much of January 6th was either choreographed by or through the White House or intentionally “not” choreographed by or through the White House. This is a case where what the White House “did not do” might be as informative as what it did. Read either way, it is 100% clear that the DC Circuit Court of Appeals was convinced by the evidence in front of it, provided by the Select Committee, that the Committee demonstrated the clear need to deny Trump’s claim to executive privilege and leave the choice to the current president.

Whatever was before the appellate court, the court had no trouble drawing a straight line between the Trump administration and the attack.

 

 

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