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SCOTUS Dropkicks Trump Bid To Block Release Of Presidential Docs To Jan. 6 Committee

It's a victory, if only a partial one, for congress.

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(Photo by Win McNamee/Getty Images)

Last night the Supreme Court slapped down Donald Trump’s effort to stop the National Archives releasing his presidential records to the January 6 Select Committee.

The sole justice who would have granted the stay happens to be married to a Republican activist who claims that the election was stolen and recently signed an open letter accusing the Committee of “overtly partisan political persecution that brings disrespect to our country’s rule of law, legal harassment to private citizens who have done nothing wrong, and which demeans the standing of the House.” Go figure.

The ruling is a major victory for the Committee, which spent months battling the former president’s lawyers as they filed brief after batshit brief arguing variously that the Presidential Records Act is illegal, the Committee itself is illegal, congress has no right to investigate the attack on itself, and that an ex-president’s invocation of privilege necessarily trumps the incumbent president’s waiver of it.

Investigators will finally get their hands on White House call and visitor logs, the drafts of Trump’s speech on the Ellipse, Kayleigh McEnany’s talking points on supposed election fraud, and a proposed executive order on “election integrity,” all of which the former president had tried to keep locked down by shouting “Executive privilege!” at various judges.

Multiple lawyers whose opinions we respect say that this is very bad news for the former president’s allies, particularly Mark Meadows, who refused to cooperate with the Committee citing Trump’s claim of executive privilege, even after the White House explicitly informed him that President Biden would not be asserting privilege over his testimony. And indeed, if the Court had simply upheld the DC Circuit’s ruling, this would be a significant blow to the claim that an ex-president can assert privilege just by shouting it from his golf cart in Florida.

But the Court did not uphold the appellate panel’s ruling — it deliberately nixed the portions dealing with privilege.

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“The questions whether and in what circumstances a former President may obtain a court order preventing disclosure of privileged records from his tenure in office, in the face of a determination by the incumbent President to waive the privilege, are unprecedented and raise serious and substantial concerns. The Court of Appeals, however, had no occasion to decide these questions because it analyzed and rejected President Trump’s privilege claims “under any of the tests [he] advocated,” Trump v. Thompson, 20 F. 4th 10, 33 (CADC 2021), without regard to his status as a former President, id., at 40–46.

In plain English, Trump maintains that the appropriate metric to evaluate the Committee’s requests is the four-part test set out in Trump v. Mazars, the 2020 case involving a congressional subpoena for Trump’s financial records. The trial and appellate courts both held that Mazars was inapposite, since that case involved a congressional subpoena for the sitting president’s personal records held by a third party, while the issue here is a request in accordance with statute to access government records, held by the government, and only contested by an ex-president who claims that he is best situated to determine whether the release harms the executive branch.

Both lower courts curb stomped Trump’s privilege claims, but added in a section on Mazars saying that, even if that were the appropriate standard — which it was not! — he’d lose anyway.

“All of the cases on which Mr. Trump relies involved requests for information from a sitting President, not a former President, and called upon the courts to resolve an interbranch dispute,” Judge Millett wrote for the appellate panel. “The Mazars test, for example, was expressly tied to ‘special concerns regarding the separation of powers’ that arise when the ‘legislative interests of Congress’ clash with the ‘unique position of the President[.]’”

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The Circuit Court based its decision on a privilege analysis grounded in separation of powers, concluding that the sitting president almost always wins.

When a former and incumbent President disagree about the need to preserve the confidentiality of presidential communications, the incumbent’s judgment warrants deference because it is the incumbent who is “vitally concerned with and in the best position to assess the present and future needs of the Executive Branch[.]” Nixon v. GSA, 433 U.S. at 449. Mr. Trump’s disagreement with President Biden’s judgment, by itself, provides the court no basis to override the sitting President’s judgment.

But now the Supreme Court is ditching all that language, calling it “nobinding dicta.”

Because the Court of Appeals concluded that President Trump’s claims would have failed even if he were the incumbent, his status as a former President necessarily made no difference to the court’s decision. Id., at 33 (noting no “need [to] conclusively resolve whether and to what extent a court,” at a former President’s behest, may “second guess the sitting President’s” decision to release privileged. Any discussion of the Court of Appeals concerning President Trump’s status as a former President must therefore be regarded as nonbinding dicta.

Which means that the Circuit Court decision has no bearing on Meadows’ privilege claim at all. He’s still free to argue that he can’t testify because Trump has invoked privilege, and he’s got Justice Kavanaugh to back him up.

Here’s Kavanaugh’s separate statement respecting the denial:

The Court of Appeals suggested that a former President may not successfully invoke the Presidential communications privilege for communications that occurred during his Presidency, at least if the current President does not support the privilege claim. As this Court’s order today makes clear, those portions of the Court of Appeals’ opinion were dicta and should not be considered binding precedent going forward.

Moreover, I respectfully disagree with the Court of Appeals on that point. A former President must be able to successfully invoke the Presidential communications privilege for communications that occurred during his Presidency, even if the current President does not support the privilege claim. Concluding otherwise would eviscerate the executive privilege for Presidential communications.

So the Committee walks out with the documents themselves, plus an affirmation that this particular request satisfies the Mazars test, which is to say that the Committee has a valid legislative purpose, the demand is not overbroad, they can’t get the information elsewhere, and complying is not overly burdensome on the executive.

Which isn’t nothing, but it’s hardly a slam dunk that will put the rest of these lawsuits to bed.

Liz Dye lives in Baltimore where she writes about law and politics.

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