Jan. 6, executive privilege, and the rule of law


The Jan. 6 insurrection in Washington, D.C., leaving five dead and more than 140 injured, was an attack not only on a building, but on the United States. It was an assault on American democracy, a rejection of the rule of law, when its perpetrators attempted to halt the final electoral count of the 2020 presidential election.

Some observers argue that President Trump’s supporters stormed the Capitol at his behest, and now a bipartisan congressional select committee is investigating how the event was planned, who was involved, and whether new legislation should be enacted to forestall a future attack.

Select committee members need to hear testimony and review documents preceding the event to properly do their work. They have asked several former Trump administration officials to supply information about what they knew before and during the attack. They have requested presidential material from the National Archives to learn whether and how the former president played a role in provoking the attack that was designed to keep him in office.

Courts have made clear that congressional committees may obtain information if it furthers a legislative purpose. A nation like ours, based on the rule of law, requires its legislative branch to fulfill its duty for the good of all so, as in this case, it never happens again.

Trump and former administration officials have stonewalled, declining to supply needed evidence of their role in the insurrection by claiming “executive privilege.” This principle appears nowhere in the Constitution or in law. It is a matter of practice that allows presidents to receive confidential information and advice as they contemplate policy decisions.

But no policy was contemplated on Jan. 6. The goal was to overturn the rule of law, and an election that more than 60 judges and many state officials found to be fair and honest.

While the Supreme Court has recognized executive privilege, the justices have noted that it is neither absolute nor unqualified. The select committee argues that executive privilege does not cover individuals potentially involved in the planning and provoking of the Jan. 6 assault, especially because many were no longer in the administration. The committee has issued subpoenas to at least 20 former members of the Trump administration, demanding they come forward with testimony and documents. Trump himself may soon be on the list.

Congress, like the courts, possesses subpoena power, meaning those who refuse are under penalty of the rule of law. A grand jury indicted one former Trump advisor, Steve Bannon, of criminal contempt for ignoring a subpoena requiring him to appear. He faces felony charges that may lead to imprisonment and/or a hefty fine. Others who refuse to appear, including Trump’s former chief of staff, Mark Meadows, may also face prosecution and imprisonment.

The requested information is important in light of a Zogby poll undertaken several weeks after the Capitol riot that concluded 46 percent of those responding believed that the U.S. might be on the verge of a civil war. The respondents included Republicans, Democrats, and independents.

Neoconservative Robert Kagan darkly argued in the Washington Post that we are “already in a constitutional crisis.” We may experience “a reasonable chance over the next three to four years of incidents of mass violence, a breakdown of federal authority, and the division of the country into warring red and blue enclaves.”

A September CNN poll found that 78 percent of Republicans do not believe Joe Biden was elected president, and 54 percent “believe there is solid evidence of that, despite the fact that no such evidence exists. That view is also deeply connected to support for Trump.”

Does this forecast a further breakdown of the rule of law? I used to argue in class that with the glaring exception of the Civil War, Americans are not a revolutionary people. Americans do not change their government through violence and bloodshed. Yet, increasingly, pockets of our fellow citizens decline to accept the integrity of the vote, the outcome of elections, and the peaceful transfer of power as the underpinnings of change.

Does this presage the demise of the American republic, as some have predicted? No, we don’t face a civil war. The one lasting from 1860 to 1865 was a sectional conflict between North and South over the abolition of slavery. Today’s extremism permeates every state, and does not match the circumstances of the 19th century. Our republic will prevail, but if and only if we still believe in the rule of law.


Jack Fruchtman, who lives in Aquinnah, is updating his history of the U.S. Constitution.


  1. When you have the media and our President say Rittenhouse is guilty and it wasnt self defense even when confronted with video and courtroom sworn facts it is not difficult for people to say the so called Insurrection has been hyped and many ”facts” have been negated. Addiction to misinformation is standard fare now.

  2. Lest it be suggested you are an eager source for misinformation, you might consider reducing your insinuations.

  3. This country was founded in violence of revolution! It will always be tested through violence… rules of law are for the victors.

  4. I believe voting is THE most important right, people have a right to question the recent practices that we all know occurred during the pandemic! Changes to how we vote and where and how were changed illegally by many interesting jurisdictions! Yes folks are fed up with many DC politicians on both sides and do not feel they are represented as designed! Why was the death of an innocent, unarmed woman covered up & why has this govt placed peaceful folks in solitary confinement! We are a nation founded of the people, by the people, for the people! Obviously many People felt that were deceived! Get the facts straight eloquent “professor” who resides in Aquinnah!! Peace

    • Joe –I assuming you are referencing Ashli Babbitt when you say “innocent unarmed woman”.
      I wonder what part of that incident was “covered up” ?
      Let’s look at the facts;

      We have video of her being shot.

      She was attempting to step through a broken window in defiance of the lawful order of a police officer with his weapon drawn and pointing at her.

      The officer had no idea if she was armed. ( that is an often used defense of police officers who shoot unarmed people defying their orders, and moving towards them)

      There were at least 12 members of congress within 50 ft of where she was attempting to get to.
      The officer who shot her has been identified.
      That officer took an oath to protect members of congress.

      The mob that Ms. Babbitt was leading had for some time been chanting “hang Mike Pence” — ( at the time, the standing vice president of the United States) — we do not know where Mr. Pence was at the time of the shooting, because republican lawmakers are doing their best to “cover up” what actually happened that day. The mob had also been calling for the murder of Nancy Pelosi, AOC, and other members of congress, who were presumably within 50 ft. of the incident.

      So, Joe– please let me, and the rest of us here, know what part of this incident has been “covered up”?

      Violent prisoners who threaten prison guards while in custody are routinely put into solitary confinement.

      • The shot was caught on video. We have all seen it.
        There is no way the shooting of Ashli Babbit, execution style, can be justified as an act of self-defense, or of the defense of anyone else. The security personnel at the Capitol are presumably trained professionals. Presumably the shooter panicked.

        • Katherine– Yes, we all saw the video . I think you might have a misconception as to what an execution is.
          How would you suggest that the “trained professionals” there should have handled a few hundred angry people armed with clubs who had already broken through numerous police lines and physical barriers, injuring dozens of police in the process , and chanting various choruses encouraging the murder of the people they were after ? What do you think would have happened if Ms. Babbitt had been allowed to go through that final barrier protecting dozens of our duly elected officials ? Do you think anyone would have followed her? Do you think they would have hugged and kissed the police or the congress people in appreciation for their service when they had them cornered and defenseless ?
          If anything, Ms Babbit should be commended for giving up her life, which immediately stopped the mob and the bloodshed that would have certainly ensued had the officers stood by and allowed the mob entry into that room.

          • Mind-boggling and grossly unAmerican that a willing insurrectionist, trying to overthrow our government’s smooth and sacred transition of power, is viewed as some sort of victim for being stopped in her violent actions. The police officer who shot this traitor is a hero who protected our lawmakers lives. Some people still swallow the Big Lie from their cult leader.

          • Jackie– I hope you do not think that I think Ms. Babbitt was victim. She was a traitor to the constitution and her country. That is clear. I am just saying that her death was instrumental in preventing the deaths of many more people who actually were innocent.

    • What triggered your response?
      Is your definition of triggered response a response that does not align with your thinking?

    • Tim– If one having a predictable take on things, Like claiming the insurrectionists on Jan 6 th were a nice peaceful bunch of tourist,( I have seen that claim a number of times) or claiming that the riots in Minneapolis were peaceful ( I have not seen anyone claim that here)
      Then yes, we are guilty of viewing events through our political lens.
      I’m not sure that elevates to the level of “triggered”

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