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As the legal walls close in on Donald Trump, the Supreme Court’s Jan. 19 order rejecting his bid to keep secret a trove of official documents related to Jan. 6, 2021 despite President Joe Biden’s waiver of executive privilege bodes poorly for the former president.
Trump asked the court for an emergency stay preventing disclosure of White House records to the House Select Committee on the January 6 Attack. Trump roundly lost the case in the lower courts, which rejected his claims “under any of the tests [he] advocated,” without regard to his status as president. In an unsigned decision, the Supreme Court sided with the U.S. Court of Appeals for the D.C. Circuit, as it had “concluded that President TrumpDonald TrumpHeadaches intensify for Democrats in Florida Stormy Daniels set to testify against former lawyer Avenatti in fraud trial Cheney challenger wins Wyoming Republican activists' straw poll MORE’s claims would have failed even if he were the incumbent.” Translated, the Supreme Court did not even bother with Trump’s argument that a former president can compete with a sitting president when it comes to the assertion of executive privilege.
This outcome is much like when President Richard Nixon failed to persuade the court to keep the Watergate tapes secret on executive privilege grounds (it held in 1974 that the president does not have absolute, unqualified immunity from subpoenas under executive privilege). The modern court signaled that Congress might have gotten the Jan. 6 documents even if Trump were still the president today.
The D.C. Circuit’s unanimous opinion gives five succinct reasons why stating, “the former President has failed to establish a likelihood of success given (1) President BidenJoe BidenUS threatens sweeping export controls against Russian industries Headaches intensify for Democrats in Florida US orders families of embassy staff in Ukraine to leave country MORE’s carefully reasoned and cabined determination that a claim of executive privilege is not in the interests of the United States; (2) Congress’s uniquely vital interest in studying the January 6th attack on itself to formulate remedial legislation and to safeguard its constitutional and legislative operations; (3) the demonstrated relevance of the documents at issue to the congressional inquiry; (4) the absence of any identified alternative source for the information; and (5) Mr. Trump’s failure even to allege, let alone demonstrate, any particularized harm that would arise from disclosure, any distinct and superseding interest in confidentiality attached to these particular documents, lack of relevance, or any other reasoned justification for withholding the documents.”
Only Justice Clarence ThomasClarence ThomasSupreme Court sides with murder defendant in major evidentiary ruling Supreme Court rejects Trump's bid to shield records from Jan. 6 committee Steve Bannon's Supreme Court? MORE noted a dissent. Justice Brett KavanaughBrett Michael KavanaughSupreme Court sides with murder defendant in major evidentiary ruling Ossoff and Collins clash over her past support for voting rights legislation Supreme Court rejects Trump's bid to shield records from Jan. 6 committee MORE sided with the majority but wrote his own statement with the caveat that there may be circumstances where a former president’s view on executive privilege holds water; for example, if communications “were subject to the absolute control of a subsequent President who could be a political opponent of a former President.” (In this age of unmitigated rancor, Kavanaugh appears to be worried about confidential presidential records one day being used as pure political weapons to the detriment of the office of the presidency. The statement suggests that Kavanaugh is not going to cave to pro-Trump pressure if it means sacrificing this slice of constitutional law.)
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