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Why SCOTUS Will Reject Trump’s Executive Privilege Argument

Dec. 14, 2021, 9:00 AM

Few ever make money betting on U.S. Supreme Court outcomes. Especially betting on the current Supreme Court to reject partisan outcomes.

Still, there are five reasons it seems relatively safe to wager on the likelihood that the court will not disturb Trump v. Thompson, the D.C. Circuit Court of Appeal’s Dec. 9 take-down of former President Donald Trump’s claim of executive privilege.

The appeals court rejected Trump’s contention that the privilege permits him to keep his White House documents from the House Select Committee investigating the Jan. 6 riot at the Capitol.

The Court Has a Bigger Fish to Fry

It takes four Justices to vote to take a case to review. Trump can usually count on Justices Clarence Thomas and Samuel Alito, followed closely by Justice Neil Gorsuch. Getting either Justice Brett Kavanaugh or Justice Amy Coney Barrett’s votes to grant certiorari in this case might be a steeper climb.

In the court’s current crisis of legitimacy, they may choose to prioritize preserving the court’s standing over deciding a case handing Capitol Hill Democrats a victory, at least where the justices’ core beliefs are not at stake.

Barrett famously gave a speech in November in which she said the Justices were “not a bunch of partisan hacks.” That denial would be at even greater risk of being laughed off by America’s majority were she to vote for considering whether Trump can hide the truth about his role on Jan. 6 in the executive privilege case, with all four lower court judges having ruled otherwise.

It would surprise few readers of her pre-court, anti-choice activism if her preeminent interest as a justice were in overruling Roe v. Wade. That issue is before the court in Dobbs v. Jackson’s Women’s Health Organization. If her priority is to overturn Roe, she can hedge the risk of looking ideological doing that in Dobbs by adopting a counter-partisan approach in Trump’s case.

Kavanaugh may take a similar view. He appears to be the conservative Justice most amenable to Chief Justice John Robert’s institutionalist concerns about preserving the court’s image as a body that “calls balls and strikes” impartially.

The D.C. Circuit Is Right

The unanimous D.C. Circuit court’s opinion respectfully acknowledged that “Article III courts are generally ill-equipped to superintend or second guess the expert judgment of the sitting President” regarding the best interests of the nation, especially when his judgment aligns with that of Congress.

Such deference follows the Supreme Court’s teaching in Nixon v. GSA, the key precedent here, that “the incumbent President is...in the best position to assess the present and future needs of the Executive Branch.”

The appeals court also carefully considered the former president’s claim, as Nixon requires, and found it wanting. Trump offered no evidence demonstrating that his views outweighed those of the current president, or that disclosure of any specific document would cause irreparable damage to the presidency.

Trump did not carry that burden, the court said. Instead, Trump had contended that the court should review thousands of documents to weigh the benefit of disclosure versus harm. Treating judges like law firm associates falls short of an argument that tends to appeal to the judiciary, including justices on the U.S. Supreme Court.

The Conservative Majority Can Have the Last Laugh

Following the rule of Nixon, the D.C. Circuit concluded: “It is only [the incumbent] who can make a fully informed and circumspect assessment of all the competing needs and interests of the Executive Branch.”

That said, Supreme Court Justices know that sooner or later, a Republican will occupy the White House. They may appreciate that turnaround will be fair play.

The Court Can Help Trump Another Way

The court has tools for helping Trump short of ruling for his executive privilege claim. It could take a long time to deny his certiorari petition, aiding his familiar effort to delay the select committee’s work until the current congressional term ends.

Alternatively, the court could agree to hear his case and rule against him in June or July of 2022, further advancing the cause of keeping the documents away from the committee as long as possible.

There is a risk there, however. A solid majority of Americans currently think that the court acts politically rather than according to the law. A savvy public would see the granting of certiorari as giving credence to the charge that the Justices are partisan actors.

Trump Still Has His Favorite Card to Play

Last, astute political observers that they are, the justices surely understand that Trump is skilled enough at messaging that disclosure of the documents may not ultimately matter much.

Whatever they contain, whatever the select committee concludes, Trump will point to the fact that it consists of seven Democrats plus Republican Reps Liz Cheney (Wy.) and Adam Kinzinger (Ills). In Trump’s lingo, they are two “RINOs”—Republicans in name only.

As sure as the night follows the day, he will scream “Fake News!” as to any select committee report that points an accusatory finger at him.

The court likely sees that any ruling for Trump on the executive privilege issue does not give him something that he ultimately needs. So here, why not try to bolster the justices’ credibility as impartial “callers of balls and strikes?”

All that said, it’s worth repeating: Few make money betting on this court to reject partisan outcomes.

This column does not necessarily reflect the opinion of The Bureau of National Affairs, Inc. or its owners.

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Author Information

Dennis Aftergut is of counsel at the Renne Public Law Group in San Francisco. He is a former federal prosecutor and local government lawyer who has argued in the Supreme Court and writes on national affairs.

The views represented here are the views of the author only and do not necessarily represent the views and opinions of the firm.