A late-night ruling eviscerated the ex-President’s assertion of executive privilege to prevent the National Archives from turning over hundreds of documents pertinent to the House probe examining the January 6 Capitol insurrection.
Although Trump is already mustering an appeal, the ruling represented a huge win for the House select committee probing one of the most alarming assaults on democracy in US history. It also came as a swift blow to Trump’s efforts to run out the clock ahead of a possible Republican takeover of the House next year, which would mean an almost certain end to the investigation.
It upheld a core principle underpinning the checks and balances of American democracy that allows the court system to step in to adjudicate a dispute between a chamber of Congress and the executive over the extent of presidential power. Most intriguingly, it also represents the first test of Trump’s ability to use the court system to defy Congress when he is not shielded by the office of the presidency itself. It could have implications for the power of ex-presidents as it relates to executive privilege.
“Presidents are not kings,” Judge Tanya Chutkan wrote, adding: “And Plaintiff is not President,” as she ruled that current commander in chief Joe Biden — and not the former occupants of the office — is the determining factor in privilege claims.
For much of a term that constantly stretched and almost buckled the principles of American democracy, Trump did seem to believe he had the authority of a king. Indeed, the President who was twice impeached for abuses of power once declared that Article 2 of the Constitution meant that he had “the right to do whatever I want as President.” But Chutkan’s ruling shows that as an ex-President, Trump’s belief in his own omnipotence and right to flout the rule of law is on even weaker ground than during his four tumultuous years in office.
Boost to January 6 committee
Tuesday’s ruling offers an immediate boost to the committee investigating the January 6 attack by a pro-Trump mob on the US Capitol.
The panel has been struggling to get key figures around the ex-President to testify about his coup attempt. It has already cited Trump’s longtime political guru Steve Bannon for contempt of Congress and is waiting to see whether the Justice Department will underwrite its authority and open a prosecution in the case.
The committee has sent out another flurry of subpoenas to Trump White House aides and outside advisers this week, but until Attorney General Merrick Garland makes a decision on Bannon’s fate, the extent of the panel’s capacity to work its will remains in doubt.
The committee wants to examine White House call and visitor logs, schedules and notes from top officials including former chief of staff Mark Meadows, to flesh out a full picture of the ex-President’s actions in the run up to the insurrection. It wants to find out who was advising Trump, whether the march on the Capitol was pre-planned, and learn about his failure to stop the marauding mob once it had breached the Capitol building.
In her opinion, Chutkan wrote that the House had every interest in examining all aspects of that fateful day “and to consider legislation to prevent such events from ever occurring again.” Trump’s lawyers had cast doubt on the notion that the House had a “legislative purpose” in seeking the documents — and portrayed its subpoenas as broad and unprecedented power grabs.
For their part, Trump’s lawyers had also asserted an extraordinarily broad claim of executive privilege that in effect could have meant that information — some of which is fairly routine — pertinent to the Trump presidency could be kept from the public in perpetuity.
Executive privilege is the doctrine under which presidents can expect that advice they get from officials will remain confidential. The tradition is critical to the notion of separation of powers in ensuring the integrity of the executive branch and, in practice, is vital to presidents during great national crises. But while former presidents are deemed to enjoy some protection from executive privilege for events that occurred during their time in office, the final decision is seen to actually rest with the sitting president. Biden had decided that the national interest represented by gaining an accounting for the January 6 insurrection outweighed Trump’s desire to keep material secret.
Chutkan upheld that view.
“It is the incumbent President who is best situated to protect executive branch interests,” Chutkan said, adding that presidential privilege “exists for the benefit of the Republic, not any individual.”
In invoking the phrase, “Presidents are not kings,” the judge was repeating a line used by Judge Ketanji Brown Jackson in a case over former White House counsel Don McGahn’s defiance of an early subpoena. Ultimately McGahn did testify to Congress, but several years after the initial subpoena, a model Trump seems to be following now in a bid to frustrate the Capitol insurrection probe.
Committee chairman tells Trump to ‘man up’
Trump’s appeal of Tuesday night’s ruling on its own will not stop the National Archives beginning to hand over documents by a Friday deadline. But he could seek a court order to halt the process while litigation makes it through the appeals courts. Trump’s strategy potentially also means that the case could ultimately end up at the Supreme Court and produce unprecedented answers on the extent of an ex-president’s powers regarding executive privilege.
The select committee’s chairman, Rep. Bennie Thompson, a Democrat of Mississippi, had harsh words for Trump after the ruling was announced.
“If you take your issue to court and lose, then you need to man up and deal with it and not be a spoiled brat, so I look forward to getting this information,” Thompson told CNN’s Chris Cuomo.
Yet in private, business and political life, Trump is a serial and often frivolous litigant and regards the court system as a way to delay accountability as much as an enforcement mechanism for the law. So his appeal — in a process that has long been clear is intended to run out the clock on the committee — is no surprise.
A spokesman for Trump, Taylor Budowich, tweeted a statement that indicated that the former President sees Tuesday’s ruling as a temporary setback in a much longer process.
“The battle to defend Executive Privilege for Presidents past, present & future—from its outset—was destined to be decided by the Appellate Courts,” Budowich wrote. “Pres. Trump remains committed to defending the Constitution & the Office of the Presidency, & will be seeing this process through.”
The idea that Trump is acting to defend the integrity of an office whose traditions he frequently trampled — and almost destroyed at the end of his term earlier this year — is a laughable one. His lies about a stolen election and attempts to use the power of his office to thwart a peaceful transition of power and to deny the will of voters in a free and fair election offer a more accurate reading of his attitude toward the Constitution.