This afternoon, former President Donald Trump filed his petition for certiorari and application for stay of the DC Circuit’s ruling that the January 6 Select Committee is entitled to receive his presidential records from the National Archives. Merry Christmas, Justice Roberts! There’s a giant orange package under the tree with your name on it.
Under the Presidential Records Act, executive branch communications remain the property of the federal government and are maintained in the custody of the National Archives. The outgoing president can designate that they be kept secret for twelve years, but Congress can access them “if such records contain information that is needed for the conduct of its business and that is not otherwise available.” The Act further provides that an ex-president’s assertion of executive privilege can block disclosure “unless (i) the incumbent President withdraws the decision upholding the claim of privilege asserted by the former President; or (ii) the Archivist is otherwise directed by a final court order that is not subject to appeal.”
And just as hard cases make bad law, bad law makes hard cases. Because the PRA, which was enacted to claw back Richard Nixon’s presidential papers, doesn’t say what to do when the incumbent president and the former president disagree; nor does it it provide a rubric for courts to evaluate a claim of executive privilege made by an ex-president. Presumably congress would have been more specific if it anticipated that a mere 43 years later the country would elect a president even more lawless than Nixon.
President Biden evaluated each tranche of documents as they were produced by the archivist and declined to assert privilege. Trump sued, advancing various arguments about the Committee’s lack of legislative purpose and the invalidity of the PRA, as well as asserting that his claim of privilege outweighs President Biden’s waiver of it.
US District Judge Tanya Chutkan disposed of the claim in short order, noting that “Presidents are not kings, and Plaintiff is not President.”
The DC Circuit was similarly dismissive of the former president’s insistence that a crank on a golf cart in Florida was better situated to evaluate the interests of the executive branch than the actual sitting executive.
Mr. Trump has made no record nor even hinted to this court what context or information has been overlooked or what information could override President Biden’s calculus. We cannot just presume it. Nor can we, on our own, hunt through the documents for sensitivities or concerns that have never been articulated by Mr. Trump.
The Circuit panel stayed disclosure until December 23, so now the former president is throwing a Hail Mary to SCOTUS.
This application seeks to maintain the status quo so the Court can carefully consider this important case that fundamentally affects the functioning of the American presidency. The underlying petition, filed contemporaneously with this application, presents a matter of first impression: whether a congressional request for a former President’s confidential records runs afoul of the Presidential Records Act or the constitutional protections of executive privilege and separation of powers.
One would think that FedSoc’s finest would simply shout “Theory of the Unitary Executive!” before summarily yeeting this stinker into the sun.
But, no! According to Trump, there are apparently two presidents, and they both get a say.
Further, these questions will be presented in a petition filed by a former President of the United States, which increases the likelihood that the Court will grant certiorari. The President is no “‘ordinary’” litigant.
Trump goes on to regurgitate the same claims about the Committee’s lack of legislative purpose and the overbreadth of the document request that he made in the lower courts. But this time he’s adding some extra pizzaz.
Here he is pretending that his administration cooperated with the impeachment inquiry, so there are no documents left to turn over to Congress and Nancy Pelosi should investigate herself for failing to guard the Capitol from the goons he summoned.
Congress already conducted a thorough investigation of the events of January 6 in the context of its impeachment effort. It has not identified a clear legislative purpose in the present effort. Instead, the additional material it seeks to uncover seems focused on political exposure, not towards addressing security flaws that are easily uncovered through documents and testimony from security officers and experts.
And here he is saying that the court should be very careful of allowing massive changes to hotly contested laws to go into effect without a fulsome briefing on the merits, just like they did with Texas’s abortion statute.
This Court recently noted that the presentation of a serious question is significant in weighing whether to grant injunctive relief pending appeal. Whole Woman’s Health v. Jackson, 141 S. Ct. 2494, 2495 (2021). This is especially true when the question is a novel one. Id. at 2496 (Roberts, C.J., dissenting). Novel questions of congressional access to presidential records and executive privilege are at the heart of this case.
OH MY GOD.
And here he is inviting the court to take its sweet time, no rush to settle this by the end of 2022, it’s no skin off his, errr, the sacred interest of the executive branch’s nose.
Considering that the next transition of power is more than three years away, providing ample time for any needed legislation after this case is properly reviewed. Any harm the Committee might endure pales in comparison to the harm facing Applicant, including potential mootness of review.
Now, Clarence! now, Johnny! now, Sammy and Amy!
On, Kegstand! on Gorsuch! on, executives … binary!
Trump v. Thompson [SCOTUS Docket]
Liz Dye lives in Baltimore where she writes about law and politics.