Opinion by Norman Eisen, Joshua Perry and E. Danya Perry
Updated: Fri, 21 Jan 2022 01:35:27 GMT
Editor's Note: Norman Eisen is the executive chair of the States United Democracy Center. He served as former President Barack Obama's ethics czar and ambassador to the Czech Republic, and was special impeachment counsel to the House Judiciary Committee in 2019-2020. Joshua Perry is of counsel with Perry Guha, LLP, a litigation boutique focused on complex civil and criminal trial practice and white collar investigations. E. Danya Perry is a founding partner of Perry Guha LLP. She was a former federal prosecutor and served as chief of investigations for New York state's Moreland Commission on Public Corruption. The views expressed in this commentary are his own. View more opinion on CNN.
On Wednesday evening, the US Supreme Court removed the last obstacle to a congressional committee receiving critical documents about the January 6 insurrection.
The National Archives has already started turning over Trump administration documents to the committee investigating the January 6 attacks, with more to follow. The House select committee can use this trove of evidence -- including handwritten notes, daily logs and draft documents -- to pursue accountability and to shape legislative proposals to armor our democracy against further assaults.
The speed with which this case moved through the courts validates the committee's urgent approach to its mission, and undercuts the weak executive privilege claims that former President Donald Trump's allies have used to try to hide the truth from the American people.
But -- perhaps as a tradeoff for the decision's speed -- it does not signal entirely smooth sailing going forward.
In October, Trump, continuing his pattern of litigation to evade accountability, sued to block release of documents requested by the January 6 committee.
The lower courts were having none of it, issuing quick, careful and decisive opinions. On November 9, federal District Court Judge Tanya Chutkan ruled that Trump can't overrule the sitting president's decisions about executive privilege: "Presidents are not kings, and Plaintiff is not President." Exactly a month later, a unanimous panel of the DC Circuit upheld the lower court's ruling. Noting that "[u]nder our Constitution, we have one President at a time," the court explained that courts should defer to the determinations of the sitting president and Congress.
But the circuit court's decision didn't hinge on the conclusion that the sitting president's judgment weighs more heavily than the opinion of a defeated former president. As that intermediate appellate court emphasized, Trump would lose under any legal analysis. That is because he did nothing to show why any specific document should be privileged. All he did was vaguely and generally assert privilege -- but that kind of blanket assertion of privilege rarely cuts it in court.
Trump again looked to a higher court for relief. And now, the Supreme Court -- with only one justice, Clarence Thomas, noting a dissent -- has shut him down, too, refusing to block release of the documents.
The court prefers, when possible, to sidestep hard constitutional questions -- that's the doctrine known as "constitutional avoidance." It did that here by ruling that Trump could not win no matter which legal test applied. In other words, even if former presidents had rights equal to sitting presidents, Trump would still lose. Whether because of sloppy lawyering or because even good lawyers can't always win impossible cases, Trump just made no showing that any privilege should apply at all. "Because I said so" isn't a legal argument -- especially when you're not the person elected to make those kinds of pronouncements.
The decision matters both for its immediate impact -- the Trump documents are now being handed over, a win for democracy and accountability -- and for three key things that it tells us about the congressional inquiry into January 6 and the subsequent recommendations that will follow to protect against another insurrection.
First, this decision validates the deliberate speed with which the committee is proceeding in its vitally important work. As we've argued both in written columns and in the DC Circuit and Supreme Court amicus briefs that we filed in support of releasing the documents, former presidents don't have equal rights in this situation. But resolving the legal question of how to balance former presidents' assertions against the determination of the sitting president might have eaten up months of the calendar.
We have said all along that this case could and should be handled on the same three-month schedule that applied in the resolution of the subpoena of the Watergate tapes. This quick decision allows Congress to get the documents immediately and move forward on its schedule of hearings this spring and an interim report this summer.
And that schedule, in turn, means a great deal to the health of our democracy -- including the state and local officials who must administer secure and fair elections in the fall of 2022. Trump's delay tactics, which allowed him to evade subpoenas for his tax returns and his henchmen's testimony while he was president, failed him here.
Second, the decision is a warning to Trump's circle, whose members -- such as former adviser Steve Bannon -- have repeatedly cited executive privilege in refusing to cooperate with the committee.
It's true that this decision didn't describe exactly how courts should weigh a former president's invocation of the privilege. But it did eviscerate the strategy that ex-Trump officials have used so far. After Trump v. Thompson, vague, blanket assertions of the privilege, without any specific explanation of how the information sought is privileged and why its disclosure would hurt the executive office, likely won't cut it.
That is devastating news for Bannon, whose criminal prosecution for an even more outrageous blanket assertion of the privilege has already begun. And it should hasten the Justice Department's decision on whether to prosecute former Trump chief of staff Mark Meadows, who cited the privilege in refusing to show up for his congressional deposition.
Third, the decision suggests that we may not be done with future legal posturing over these issues. Thomas didn't explain his reason for dissenting. But Justice Brett Kavanaugh wrote separately to explain that while he was voting against denying relief in this case, he thinks former presidents do have a strong claim to assert privilege: "A former President must be able to successfully invoke the Presidential communications privilege for communications that occurred during his Presidency, even if the current President does not support the privilege claim." That is an argument that the court's majority does not foreclose.
Kavanaugh is wrong, and it is heartening that no other justice joined his statement. Former presidents should not be able to disturb the constitutional order and interfere in a consensual information exchange between Congress and a sitting president. The Constitution affirmatively requires sitting presidents to share information with Congress.
Kavanaugh's statement invites future mischief making. Trump may be back with more detailed -- if ultimately no more meritorious -- privilege claims in response to future subpoenas, whether by the committee or other authorities. But the bottom line is that this decision greatly weakens the legal underpinnings of the Trump massive resistance strategy.
The Supreme Court's decision was a bright spot for democracy. Handed down on the same day that some US senators blocked federal election reform, the decision is a reminder that the fight to protect our democracy has many fronts -- in the courts, in Congress and in states across the country -- and that democracy's defenders must prevail.