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 Trump’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.
Ouch.
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 Biden’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 Thomas noted a dissent. Justice Brett Kavanaugh 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.)
Keep in mind that the Supreme Court may be asked to rule on additional Trumpian pleas for deference — as news breaks every day about the accelerating pace and scope of the various investigations involving Trump.
For starters, despite having already brought hundreds of criminal actions around the Jan. 6 violence, including a seditious conspiracy indictment against 11 participants, Attorney General Merrick Garland publicly vowed that “the actions we have taken thus far will not be our last.”
News also broke that Trump’s personal lawyer Rudy Giuliani reportedly may have been behind the attempt to install fake electors in seven swing states. A draft executive order purporting to seize voting machines under the guise of the Big Lie was made public, and the January 6 committee plans to hold public hearings that — in the words of Rep. Jamie Raskin (D-Md.) — will “blow the roof off the House.”
House Minority Leader Kevin McCarthy (R-Calif.), Rep. Jim Jordan (R-Ohio), Fox News host Sean Hannity and Ivanka Trump have all been contacted by the committee for voluntary interviews. Several other Trump allies have also been subpoenaed, including former White House chief of staff Mark Meadows, Giuliani, former White House press secretary Kayleigh McEnany, senior adviser Stephen Miller, former Vice President Mike Pence’s chief of staff Marc Short, as well as former Trump adviser Steve Bannon.
The Department of Justice (DOJ) already charged Bannon with criminal contempt for refusing to comply. The Committee has also sought or obtained the phone records of numerous individuals, including Eric Trump and Kimberly Guilfoyle, Donald Trump Jr.’s fiancé, who spoke at the Jan. 6 rally and was involved in campaign fundraising.
If any of these witnesses winds up asking the Supreme Court if they can hide behind executive privilege to avoid testifying or producing documents, we now know that they will almost certainly lose. And if subpoenas at some point come from a criminal grand jury (instead of the relatively less entitled U.S. Congress), these witnesses will definitely lose. By the same token, therefore, if House control goes to Republicans after the November midterm elections and the January 6 committee is subsequently stalled, these folks — and Trump himself — are not off the hook. Biden’s DOJ will remain on the job for at least two more years.
Meanwhile, Georgia’s Fulton County district attorney just asked for a special grand jury to investigate the criminal implications of a Jan. 2, 2021 phone call in which Trump pressed Georgia Secretary of State Brad Raffensperger to “find” more votes for him.
In New York, state Attorney General Letitia James outlined possible civil fraud by the Trump Organization in a recent court filing seeking to compel the testimony of Trump, Donald Trump Jr. and Ivanka Trump. Manhattan’s new district attorney, Alvin Bragg, also announced a new leadership team on the ongoing parallel criminal investigation of Trump and his businesses but is keeping his predecessor’s senior lawyers.
Any of these matters could produce “emergency” appeals to the Supreme Court seeking to somehow shield Trump from public accountability for actions that plowed through standards of legal conduct. Yet, despite its controversial stance on hot-button issues like abortion and voting rights, the new 6-3 conservative majority does not seem inclined to side with Trump when it comes to attempts to subvert the authority of the presidency. For the Constitution itself, this is a good thing.
Kimberly Wehle is a professor at the University of Baltimore School of Law and author of “How to Read the Constitution — and Why,” as well as “What You Need to Know About Voting — and Why” and “How to Think Like a Lawyer – and Why” (forthcoming February 2022). Follow her on Twitter: @kimwehle