Donald Trump is often his own worst enemy. But sometimes, he gets competition from his lawyers.
The court’s decision was a brutal, and personally stinging, loss for Trump. And the arguments his own lawyers advanced may have made the defeat worse.
Trump lost the case in virtually record time. He sued the committee and the National Archives on Oct. 18, lost in the district court on Nov. 9, lost in the court of appeals on Dec. 9 and lost in the Supreme Court on Jan. 19. And so, today, the Jan. 6 committee has hundreds of documents Trump desperately wanted kept under wraps.
It’s hard to lose in so many courts so quickly — unless, I suppose, you’re Donald Trump contesting election results. So much losing, you almost have to feel sorry for the guy.
But it wasn’t just the speed with which he lost that was so merciless; equally harsh, if not more so, was the substance of the rulings against him. The decision of the court of appeals for the D.C. Circuit was bad enough: A masterful and unanimous opinion by Judge Patricia A. Millett ripped to shreds every argument Trump made.
“The Committee has sound reasons,” Millett wrote, “for seeking presidential documents in particular as part of its investigation into the causes of the attack on the Capitol,” for a simple reason: “There is a direct linkage between the former President and the events of the day.” Indeed, the court concluded, “to allow the privilege of a no-longer-sitting President to prevail over Congress’s need to investigate a violent attack on its home and its constitutional operations would ‘gravely impair the basic function of the’ legislature.”
In its perfunctory order, the Supreme Court actually made the situation worse for Trump. The court of appeals had relied, in part, on the fact that Trump was a former president — and that the sitting president had carefully reviewed and rejected Trump’s executive privilege claims.
Ordinarily, that would be a pretty strong argument to make to judicial conservatives, many of whom believe that all executive power is vested in a unitary executive — the current president.
But it was too much for the Supreme Court. The justices expressed concern that questions about whether a former president can assert executive privilege if the sitting president is willing to waive it “are unprecedented and raise serious and substantial concerns.”
So the justices actually cut back on the court of appeals’ decision: They held that, because the court of appeals had found that Trump would lose under any of the standards his lawyers had argued for — including precedents addressing privilege claims asserted by sitting presidents — there was really no need to decide what the scope of a former president’s rights should be.
In other words, the justices relied solely on the reasoning that Trump’s claims were so paltry, his privilege arguments so weak, that Trump would have lost even were he still in office.
Adding insult to injury, Trump’s own lawyers’ arguments might have helped bring the Supreme Court to that result. One of Trump’s arguments was that the lower-court decisions “effectively gut the ability of former Presidents to maintain executive privilege over the objection of an incumbent, who is often (as is the case here) a political rival.” The danger, Trump argued, was that “incumbent Presidents will indiscriminately decline to assert executive privilege over a former President’s records whenever they are of the opposite political party.”
That was an excellent point — one that apparently gave the Supreme Court pause. Think of it: What if we had a future president who was so narcissistic and vindictive that, to inflict political harm on a rival, he would reject a predecessor’s privilege claim in a circumstance that harmed the country?
Put another way, what if we had a future guy who was like the former guy — or perhaps even one and the same?
No wonder the justices left open the possibility that an ex-president could assert executive privilege over the current officeholder’s objection.
The result was an even more devastating rejection of Trump’s privilege claim — in effect, an unambiguous, blanket holding by the Supreme Court that presidents who incite insurrections in office don’t get to invoke executive privilege.
Good work, Team Trump. A grateful country salutes you.