Supreme Court hands Trump a defeat on executive privilege

Technically speaking, this ruling from the Supreme Court is only preliminary. In every other aspect, however, it’s game over for Donald Trump in his attempts to use the legal system to protect records from his White House from the House select committee investigating the January 6 Capitol riot. The court refused to issue a stay while Trump’s case proceeds in a federal district court, allowing the National Archives to comply with records demands from the committee:

The Supreme Court on Wednesday rejected former president Donald Trump’s request to block the release of some of his White House records to a congressional committee investigating the Jan. 6, 2021, attack on the U.S. Capitol.

The order turned aside Trump’s request to block the records’ release while the case regarding his assertion of executive privilege continues through the courts. It means there is no legal obstacle to release of the materials from the National Archives — which President Biden has approved — and Trump’s lawyers have argued that would make the case moot. …

It was a major victory for the House select committee, which has been aggressive in going after Trump’s records, issuing subpoenas to his allies and focusing on the president’s actions during the insurrection.

“The Supreme Court’s action tonight is a victory for the rule of law and American democracy,” committee chairman Rep. Bennie G. Thompson (D-Miss.) and vice chair Rep. Liz Cheney (R-Wyo.) said in a joint statement. “The Select Committee has already begun to receive records that the former President had hoped to keep hidden. … Our work goes forward to uncover all the facts about the violence of January 6th and its causes.”

The only apparent full dissent came from Justice Clarence Thomas, although he chose not to put it in writing. Brett Kavanaugh, who got his appointment from Trump, instead wrote a brief concurrence and dissent in part:

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.

However, Kavanaugh also concedes that the appellate court found other reasons to reject Trump’s privilege claim:

To be clear, to say that a former President can invoke the privilege for Presidential communications that occurred during his Presidency does not mean that the privilege is absolute or cannot be overcome. The tests set forth in Nixon, 418 U. S., at 713, and Senate Select Committee on Presidential Campaign Activities v. Nixon, 498 F. 2d 725, 731 (CADC 1974) (en banc), may apply to a former President’s privilege claim as they do to a current President’s privilege claim. Moreover, it could be argued that the strength of a privilege claim should diminish to some extent as the years pass after a former President’s term in office. In all events, the Nixon and Senate Select Committee tests would provide substantial protection for Presidential communications, while still requiring disclosure in certain circumstances.

The Court of Appeals concluded that the privilege claim at issue here would not succeed even under the Nixon and Senate Select Committee tests. Therefore, as this Court’s order today makes clear, the Court of Appeals’ broader statements questioning whether a former President may successfully invoke the Presidential communications privilege if the current President does not support the claim were dicta and should not be considered binding precedent going forward.

It’s an interesting point, but it’s also entirely academic, at least in terms of the stay request. It does suggest, however, that the Supreme Court really doesn’t want to address the issue of when executive privilege ends, at least not formally. Kavanaugh seems to suggest that it should stretch far longer than anyone previously considered, but his sole authorship on this essay might suggest that only he and Thomas share that view.

Also, the standard Kavanaugh suggests here is so ambiguous that it almost begs for arbitrary and capricious application. At what pace does this post-term privilege “diminish” over the years? What does it mean to “diminish” — fewer areas of privilege, or a broader assumption of legitimate state interest in disclosure? Who decides? This formulation offers no reliability and in fact might make the entire privilege issue worse than it has already become. Put on top of that a judicial creation of an extra-constitutional official status for former presidents that applies to no other office and this intellectual thread rapidly unravels.

In this case, though, the point is moot. The refusal to issue a stay will allow the National Archives to proceed with its compliance for Trump’s records. Even if Trump wins at trial — which is highly unlikely — the committee will already have the records and can craft responses from them. The colt will have bolted long before anyone gets to close the barn door.

Update: Andrew McCarthy agrees with the decision and is also skeptical of Kavanaugh’s statement, although on other grounds:

To my mind, Justice Kavanaugh’s argument is unconvincing. For the most part, he rehashes the importance of the executive privilege recognized by the Court during the Watergate scandal, in United States v. Nixon (1974). No sensible skeptic of a post-presidency privilege is disputing that, as Kavanaugh puts it, “by protecting the confidentiality of . . . internal communications, the Presidential communications privilege facilitates candid advice and deliberations, and it leads to more informed and better Presidential decisionmaking.” Nor is anyone disputing that, to promote candor, the president and presidential advisers must be confident that their advice — when it is truly in furtherance of the office’s core responsibilities — will to some degree be shielded from disclosure even after the president’s term ends.

The question is who gets to decide whether the privilege should be invoked.

We only have one president at a time. That president, even if he is a political rival of his predecessor, has a strong incentive to invoke the privilege to protect properly concealed information from that predecessor’s tenure. After all, the current president will want the same indulgence from his successors. Indeed, as noted above, Biden has asserted the privilege to protect some Trump administration materials from disclosure, and the House Committee has relented — so not even Congress is taking the position that legitimate executive-confidentiality concerns end when a president leaves office.

The privilege, however, belongs to the presidency. As Justice Scalia trenchantly explained in his 1988 Morrison v. Olson dissent, the Constitution reposes all executive power in a single official, the incumbent president. A former president has no constitutional authority, so it is dubious, to say the least, to contend that, in defiance of the holder of all executive power, a former president could invoke power he does not have in order block access to information sought by Congress or the courts — i.e., sought by the incumbent Article I or Article III branches of government, acting under their constitutional authorities.

With that in mind, Kavanaugh’s question about the strength of privilege claims fading over time is answered without ambiguity: the current president gets to make that judgment call, not the courts or his/her predecessors. Former presidents have no special constitutional standing and therefore no authority to make those decisions, with the exception of requesting the current president to intercede on his/her behalf.

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