They're applying the same procedures that applied when Trump was president.
Now there is a sliver of an argument (it will lose) but it isn't frivolous to claim that a former president should be able to assert privilege . . .
2/
The problem is that Biden has said no, so the issue isn't whether Trump can assert the privilege. The issue is who has the final say, Biden or Trump.
It can't possibly be Trump.
Okay, so . . .
3/
. . . the burden is on Trump to file in court because a statute gives the power to the sitting president.
. . . unless Trump persuades a court that the former president should have authority over a sitting president.
The reaction of any court would be: 🤣
And boot him out.
BUT (and here's the rub)
Bannon says that the select committee needs to go get a court order.
5/
Bannon is saying, "I'm not going until you show me a court order."
But they don't need a court order. The law is against Bannon.
Now, Bannon (like anyone) has the right to challenge a subpoena.
But it appears he isn't going to do that.
6/
It's hard to guess what is in the minds of these totally unhinged people, but I wonder if Bannon is looking forward to being a martyr.
Look at how Trump is glorifying Ashli Babbit.
7/
Correction to #5. I wrote fast.
Trump would have to persuade a court that the law on the books (giving ultimate authority to the sitting president) is unconstitutional.
Courts apply the law unless the law is unconstitutional.
8/
Here's how silly it would be for Trump to argue that the law giving final authority to the sitting president is unconstitutional.
While he was president, he was totally cool with that law . . .
9/
So now he'll waltz into court and say, "The law giving authority to the sitting president was totally constitutional while I was president, but now that Biden is president the law Must Be Stricken."
A court: 🤣
(Also, unitary executive theory no longer applies)
10/
If Bannon doesn't show tomorrow, he is in defiance of a legal subpoena. Full stop.
Here's the problem: The subpoenas cover information about the Stop the Steal rally and events leading to the insurrection, none of which are part of the president's duties of office . . .
15/
The subpoenas also seek information about Trump's attempt to prevent the counting of electoral votes, which is certainly outside the scope of a president's duties.
(I think I misnumbered back there)
16/
I'll add that things are a bit more complicated in terms of procedure and argument than I'm going into.
The last book in my Making of America series, in paperback inspired by the idea that the world would be a better place if 9th graders understood constitutional history.
Oh, yeah. I usually do birth announcements when a new book comes out. Cheesy, right?
We all know that Trump doesn't do well in court, where facts matter. He'd be well-advised not to try to fight the executive privilege matter in court. Yes, he'll lose. It could also backfire.
One side wants to speed up the process. They envision a conveyor belt. For much of our history, criminal justice meant putting black men in jail. In autocracies, criminal justice is to put political dissenters in jail. . .