Trump and his Supreme Gambit
or how Trump got KOed by SCOTUS again
Since losing the 2020 Election to Joe Biden, Donald Trump has gone zero for three on the things that matter most to him — being President, hiding his tax returns, and not being prosecuted.
It started with the Texas AG’s attempt (joined by others) to try to overturn Biden’s election. The Supreme Court nixxed that 7-2. The ruling came less than 6 weeks after Election Day. The “no” votes by Justices Alito and Thomas were a procedural dissent not a substantive one on the issues presented.
Trump’s tax litigation has had a longer and more circuitous path but with much the same end — Trump on the losing end. In the Court’s final order order on the matter, no dissents were noted.
And now the Supreme Court has handed Trump a third legal loss. In a bid to stop the Select Committee on the January 6th Attack on the Capitol from subpoenaing his presidential papers1 as part of its investigation, the Court held:
“The application for stay of mandate and injunction pending review presented to The Chief Justice and by him referred to the Court is denied. The questions whether and in what circumstances a former President may obtain a court order preventing disclosure of privileged records from his tenure in office, in the face of a determination by the incumbent President to waive the privilege, are unprecedented and raise serious and substantial concerns. The Court of Appeals, however, had no occasion to decide these questions because it analyzed and rejected President Trump’s privilege claims “under any of the tests [he] advocated,” Trump v. Thompson, 20 F. 4th 10, 33 (CADC 2021), without regard to his status as a former President, id., at 40–46. Because the Court of Appeals concluded that President Trump’s claims would have failed even if he were the incumbent, his status as a former President necessarily made no difference to the court’s decision. Id., at 33 (noting no “need [to] conclusively resolve whether and to what extent a court,” at a former President’s behest, may “second guess the sitting President’s” decision to release privileged documents); see also id., at 17 n. 2. Any discussion of the Court of Appeals concerning President Trump’s status as a former President must therefore be regarded as nonbinding dicta. Justice Thomas would grant the application. Statement of Justice Kavanaugh respecting denial of application.”
21A272, Trump v Thompson
Only one of Trump’s nominees to the Supreme Court agreed with Trump but only in part and inconsequentially so. Justice Brett Kavanaugh wrote a statement that he disagreed with the D.C. Circuit of Appeals ruling that executive privilege ends with the office. Since he concurred with the Court’s order upholding the D.C. Circuit Court’s decision other grounds, the effect of the statement was meaningless.
What is not so meaningless is that the D.C. Circuit Court of Appeals’ decision eviscerated not only Trump’s privilege claims but his assertions that the Select Committee lacked a legitimate legislative purpose as well — an assertion that imbued Trump’s inner circle with an assurance that the Select Committee had no jurisdiction or authority over them, thus making them immune from prosecution.
Not so much now.
Trump has never had a good grasp of constitutional governance, so it’s a sure bet Trump will lash out at that his three Supreme Court Justices did not serve his interests. But given the peril in evading subpoenas now, Trump’s rant is unlikely reverberate in GOP circles.
Rolling Stone magazine has published an extensive list of what papers Trump wanted to hide. It’s likely inculpatory. https://www.rollingstone.com/politics/politics-news/trump-jan-6-documents-national-archives-1250700/