Now It's the Supreme Court's Turn on Trump's Jan. 6 Records
(Bloomberg Opinion) -- The U.S. Congress wants to know whether former President Donald Trump issued a Code Red to insurrectionists who may have orchestrated the Capitol siege on Jan. 6. And a federal appellate court just ruled that legislators are entitled to Trump’s White House records as they try to answer that question – teeing up a Supreme Court review that puts in play such weighty matters as executive privilege, the separation of powers and the foundations of American democracy.
It’s also a historic flashpoint that will, inevitably, continue highlighting vast differences separating the nation’s two political parties as they parse the attack. Democrats, aided by a handful of Republicans, have steadily pressed an investigation meant to establish a clear fact pattern around the siege and call to account anyone who plotted to overturn the 2020 presidential election. Republicans, for the most part, have closed ranks around Trump, dismissing the gravity and implications of Jan. 6 by likening the insurrectionists to unruly tourists, run-of-the-mill protesters or dedicated patriots.
A three-judge panel of the Court of Appeals for the District of Columbia was having none of this when it issued its 68-page ruling on Thursday.
“A large crowd of President Trump’s supporters — including some armed with weapons and wearing full tactical gear — marched to the Capitol and violently broke into the building to try and prevent Congress’s certification of the election results,” the court noted. “Police officers were attacked with chemical agents, beaten with flag poles and frozen water bottles, and crushed between doors and throngs of rioters … The events of January 6, 2021 marked the most significant assault on the Capitol since the War of 1812. The building was desecrated, blood was shed, and several individuals lost their lives.”
That ferocious tableau, evoking domestic terrorism, informed the court’s perspective on the gravity and necessity of the January 6th Committee’s investigation. The court catalogued the various records the committee has sought, including call and visitor logs, calendars, schedules, and the like, and noted that Trump provided some while recently trying to exclude others by claiming privilege. The Biden White House overruled that claim, noting that it would prevent “the extraordinary events” of Jan. 6 from being “subject to a full accounting to ensure nothing similar ever happens again.”
Trump then sued to stop disclosure, arguing that the committee’s request violated his presidential privileges and served no valid legislative purpose. The appellate court excoriated Trump’s argument. It pointed out that his lawyers had “provided no basis” to override the White House’s ruling and the “unique legislative need for these documents.” The documents “are directly relevant to the Committee’s inquiry into an attack on the Legislative Branch and its constitutional role in the peaceful transfer of power,” the court added.
On top of all of that, the court pointed to “Trump’s failure even to allege, let alone demonstrate, any particularized harm that would arise from disclosure.” Indeed, there was no reason for the court, “after a sufficient showing of congressional need,” to “second guess a sitting President’s judgment that invoking privilege is not in the best interests of the United States.”
After a tour of relevant case law, the court concluded its ruling by returning to the fundamentals informing its decision. “Our Constitution divides, checks, and balances power to preserve democracy and to ensure liberty,” it noted. “Essential to the rule of law is the principle that a former President must meet the same legal standards for obtaining preliminary injunctive relief as everyone else. And former President Trump has failed that task.”
That’s about as clear, blunt and principled as you can get. It’s not clear whether the nation’s highest court will agree, however, or how it might view the novel problem of two presidents disagreeing about the scope of executive privilege. Trump’s lawyers said they plan to appeal the ruling and will ask the Supreme Court to intervene. The appellate court gave them two weeks to do so. We’re off to the races.
The Supreme Court, dominated by its conservative justices, has already given a clear indication of how it views Trump’s fetish for an imperial presidency unfettered by other branches of government or by the rule of law. Last year, it ruled that Trump had to turn over his tax returns to local prosecutors in New York investigating him and his company for criminal fraud – despite his claims that presidents should be shielded from such requests. “In our judicial system, ‘the public has a right to every man’s evidence,’” wrote Chief Justice John Roberts. “Since the earliest days of the Republic, ‘every man’ has included the President of the United States.”
That doesn’t mean the court will come down in the same place regarding the Jan. 6 inquiry, of course. But if it doesn’t, it will be hard-pressed to make an argument that demonstrates its commitment to the rule of law while it simultaneously neuters an investigation of a lawless coup attempt.
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