The Supreme Court denied Trump’s claim of executive privilege

The House committee had already received hundreds of pages of documents within hours of the ruling.

“The ruling denying Trump’s request to take up the case effectively deferred to a decision last month against him by the D.C. Circuit Court of Appeals, which had concluded that Trump’s claims for executive privilege over the documents ‘would have failed even if he were the incumbent’ president, the Supreme Court noted.”

Trump’s claim was meaningless, anyway. Executive privilege only involves the President’s ability to shield certain matters from Congress or, in some cases, the judiciary and general public. So if the Supreme Court had sided with him, he could conceivably have kept the documents from Congress. But here’s the rub. He could not shield the documents from the executive branch. That’s not a thing. If the courts had ruled that Trump could shield documents from Congress, Biden could have ordered his subordinates to place everything online immediately (probably with some redactions), in which case the House committee would have had access to all of it anyway. Trump undoubtedly realized all of that, and that everything would eventually come out, but I assume his strategy was to stall for time on any evidence not in his control, while destroying any evidence in his control before it can be subpoenaed. (That’s almost always his strategy, and has been since long before he became a politician.)

20 thoughts on “The Supreme Court denied Trump’s claim of executive privilege

  1. OK, good discussion. Even, as @US says, @McC wrongheaded contribution moves the ball ahead. Yet, maybe moot? Trump, not the prob? Only a symptom? Here’s what I mean…

    m said:
    > Re: Reductio ad hitlerum?
    > Isn’t it, not just Godwin’s Law, but justifiable in this case bc
    > what’s really happening is the very same thing?
    > FWIW, I think there’s little new content here in the sense that you
    > well know all this already. But while I agree with you & Jason that
    > those anticipating civil war are simplistic / buying into conspiracy
    > theories, as Jason hammers home, they aren’t wrong in being
    > alarmed.

    k said:
    > Read that a few weeks ago. Been depressed ever since.
    > Plan on leaving the US this year. Only… where to?

    Jason Stanley warns, “Look, we’re now in fascism’s legal phase”

      1. Guilty. Personal email, but same idea. But it’s relevant here, bc this is a forest / trees thing. Punishing DJT would be fun, but winning one little skirmish is still losing the war. And in a global sense, losing the American Way likely leads to losing the planet.

  2. Anything that gets Trump closer to wearing his inevitable orange jumpsuit is a good thing. Hard to recall anyone who’s committed so many high-level felonies that’s still a free man. He’s used money, lawyers, & bullshit all his life to weasel out of punishment, but now his back is really to the wall, and he’s finding all 3 of those defensive weapons are not working for him like they used to.

    1. The irony is that no one would have noticed if he hadn’t run for President. He’d still be out there laundering money for the Russians, defaulting on loans and not paying contractors. Like most criminals, though, his ego got the better of him.
      I’m not convinced he’s going to jail/prison, but there’s always hope.

      1. Yep. I think Trump only ran in order to make money, and to enhance his future money-making ability, but just running was stupid for a man with as much to hide as he had. Winning amplified that scrutiny by an order of magnitude, and conducting himself as he did in office added another power of ten.

  3. This is just another example of how Donald Trump destroyed political norms. The idea behind Executive Privilege is that the president should be able to rely on the frank advice of his advisors without those advisors worrying about that advice coming back to haunt them. I am not an expert on the subject, but as I understand it, presidents generally support their predecessor’s claims of privilege even if that predecessor is a member of the other party. It’s easy to understand why. If they support the claims of their predecessors, their successors should presumably support theirs. I don’t disagree with Biden’s decision not to support Trump with this. I think the DC Circuit was probably right that the claim would eventually fail even if Biden supported it. Uncovering, whether anyone in Trump’s administration was coordinating with the rioters is too important. All Biden’s decision did was make it harder for Trump to stall the committee. I am kind of curious about what these documents have to say.

    1. I have read that theory of executive privilege, and some people believe it encompasses exactly what you say it does, but if it does, it needs to change. Let’s assume that Acting President Dick Cheney sits around with Halliburton and concocts a plan to start a war so that Halliburton can increase its bottom line and kick back a percentage to Cheney. Obviously, the next President should make that public.

      “The idea behind Executive Privilege is that the president should be able to rely on the frank advice of his advisors without those advisors worrying about that advice coming back to haunt them.”

      Yes, I’ve heard that theory. If that privilege exists, it should not. Courts have generally held that statements of facts are exempt from the privilege while subjective opinions, recommendations and advice are protected. Those were bad court decisions. Those advisors should have their advice come back to haunt them – or to reward them if the advice was meritorious. The government works for us, and we have the right to know what they are doing or considering.

      Even Dick Nixon felt that Oval Office conversations should be taped for the historical record, although this did not turn out well for him. As brilliant as he was, I don’t think he realized that he was a scumbag.

      If I were interpreting executive privilege for the Supremes, I would restrict it only to those matters which compromise national security, like ongoing intelligence and other secret or confidential operations. We can’t have the names of our spies becoming public, for example, but if there is no issue of national security, “we the people” should have access to the deliberations of government. If our President is listening to the advice of crazies and crooks, and if he is conspiring with them to subvert or defraud the government , we not only SHOULD know about that, we MUST. Obviously a criminal president is not going to reveal that, so his successor must – to the Congress, through the courts, and to the public.

      Remember that executive privilege is not in the Constitution. The privilege is rooted in the separation of powers doctrine. Given that, there is no possible constitutional justification for a President to shield information from his successor. As I mentioned in my original post, even if the Supremes had ruled that Trump could shield info from Congress, they could not rule that Trump could withhold info from Biden, so in case Congress was roadblocked, Biden could simply have placed all the requested information online, as the President may do with anything in the executive branch. (Of course, some redaction might be necessary.)

      Given that, the entire Trump lawsuit in this case was simply goat-roping.

      1. Executive privilege is not absolute. Again, I am not an expert on the subject. But I believe what happens is that when faced with a claim of executive, a court will balance various equities, taking into account the reason the documents or testimony was being sought, whether the information sought was available elsewhere and probably at least one factor I can’t think of at the moment. Judges just love to create/apply 3 part tests.

        Since the privilege isn’t absolute and can be overcome by a sufficient showing of need/importance, I have to disagree with Scoopy about whether the privilege should exist. I agree, it’s not mentioned in the Constitution. But the Supreme Court has ruled it is implied by the separation of powers doctrine. Lower courts have also ruled that there is a deliberative process privilege that comes from common law.

        I think it is important for presidents to be given the best advice available before making decisions. I can easily envision some issue faced by the Biden Administration where an advisor might worry putting honest un PC unWoke analyses/advice into a memo, that if ever released to the public, could sink a future political career. Cancel culture seems to be a primarily left wing phenomena at present. But I am sure there will at some point be (if not already here) a right wing version. No matter who the president is, I want them working with the best possible advice.

        The best argument for the continued existence of executive privilege, is that despite it being invoked by Trump, the documents sought will be made available to the committee. The system actually worked. Imagine that!

        1. Your points are contradictory. If they are receiving “the best possible advice,” there should be no reason to hide it.

          Again, there’s not much sense in the President hiding anything from Congress because the next president can release it anyway, since there is no separation of powers issue in that case. Because that is true, all the arguments about privileged conversations are just so much malarkey. It is just a way for corrupt executives to hide their corruption temporarily.

          Again, note the logic: Those conversations are not protected. The next President is free to release them. They are only temporarily protected from congressional or judicial oversight. Therefore, the argument about shielding the advice-givers is pretextual. They are not shielded at all. The argument is just a ruse to keep Congress from its oversight role.

          Apart from the logic, I would also offer a pure opinion: the public’s right to know overrides everything but national security. If the Constitution does not say that, it should be amended. If the justices do not support that, they should be impeached. If the President doesn’t want us to know that he’s making improper and inappropriate comments in private, hatching criminal plots ,and soliciting advice from crazies, he has a simple remedy – stop doing it, and act like a man who deserves to lead the free world.

          1. “I would also offer a pure opinion: the public’s right to know overrides everything but national security.”

            I agree with one qualification. The public has a right to know everything the government DOES that doesn’t implicate national security, but doesn’t necessarily have the right to know everything the president CONSIDERS doing. Some examples of issues where a presidential advisor’s advice might affect a future political career. For instance, memos from the Clinton administration regarding Clinton’s crime bill and the crack/powder cocaine sentencing disparity. From the George W. Bush administration, memos regarding enhanced interrogation/torture.

            Let me anticipate an argument/criticism likely to be made in response to my examples. Enhanced interrogation had wide support in the aftermath of 9/11. While we had laws against torture, those laws had a carefully written definition of what constituted torture. When a statute defines a term, it is that definition that controls, not the dictionary definition. So while many will scoff at the idea that waterboarding did not constitute torture, a legal analysis making that argument was not as absurd as it may seem at first blush. Personally, I think it’s important for the president, when dealing with potential attacks on the United States to have a good idea of what is permitted and what is illegal. Second, while widely seen as racist today, that sentencing disparity had wide support from the Congressional Black Caucus because so many members of the Black community were fed up with sky high crime rates attributed and other negative impacts of crack. But one of the effects of people feeling safer as crime rates fall is how much people are willing to put up with to feel safe also falls. The clearest example of this was Bernie Goetz. In 1984, Goetz was accosted on the NYC subway by 4 young black men carrying sharpened screwdrivers. He drew an unlicensed pistol and shot each of the 4. None of them died, but one, Darrel Cabey, was left paralysed and brain damaged. The NYC tabloids dubbed him the Subway Vigilante. He surrendered, but the grand jury refused to indict on anything more serious than an illegal gun charge. A second grand jury indicted him on attempted murder, but a jury acquitted of everything but the gin charge. But by 1996, when a civil suit came to trial, Goetz was ordered to pay Cabey $43 million in damages. The biggest difference (other than burden of proof) was that in the 1980’s just about all New Yorkers knew what it was like to be afraid of subway crime. By 1996, those fears had mostly receded.

            Sorry, I got off on a tangent. I’ve got crime on the brain. I just worry that the modern attitude that being tough on crime is racist will get a lot of people killed. The new Manhattan DA sent his staff a memo instructing them to reduce all armed robbery charges to misdemeanors unless someone was seriously hurt and that sentences of life without parole would never be sought no matter how heinous the crime. In the meantime, an 11-month-old girl was shot in the face night before last, 3 blocks from my front door. Fortunately, she is in serious but stable condition.

          2. Strongly disagree. In fact, I can’t see the slightest value in your arguments. I believe in pretty much the opposite of everything you wrote. In all your sentences that have a “don’t” or “not” in them, I could correct them simply by erasing that word, as in the following example:

            “The public has a right to know everything the government DOES that doesn’t implicate national security, but doesn’t necessarily have the right to know everything the president CONSIDERS doing.”


            “The public has a right to know everything the government DOES that doesn’t implicate national security, AND ALSO necessarily has the right to know everything the president CONSIDERS doing.”


            “Some examples of issues where a presidential advisor’s advice might affect a future political career.”


            “Some examples of issues where a presidential advisor’s advice might affect a future political career, AS WELL IT SHOULD.”

            Government works for us. Their conversations belong to us. This is a democracy. Temporarily.

            2. People should take responsibility for the advice they give and the conversations they have. If the words that come out of their mouths destroy their careers, I applaud that whole-heartedly. If Cheney had conversations with Halliburton about the theoretical Halliburton profit from a war, we should know that. If the My Pillow guy advised a mentally ill man to declare martial law while the latter was desperately trying to stay in office, we should know that as well. If Eric Holder and Obama knew more about Fast and Furious than they told us, we have the right and the need to know what they knew, when they knew it, and whether they planned to cover it up. Again, if you will be embarrassed by having people find out what you said, there is a simple solution: don’t say it. Conduct all of your discussions as if Bob Woodward were in the room. (Because eventually he will be, one way or another.)

            3. You keep ignoring the point. That advice is NOT confidential in the real world. It is only confidential temporarily, and only from the other two branches. The subsequent President is not restricted by any such limitations, and if there is a record of anything unsavory, you can bet that the next President of the opposite party will see to it that it will be released. As I mentioned earlier, anything of Trump’s that the courts had not allowed to Congress could have been placed online by Biden the next day without consulting any courts. The advice you are trying to protect the confidentiality of from Congress is not confidential at all. It will come out. Therefore, any rationalization that purports to protect confidentiality from Congress is merely a pretext to hide potential dirty dealings for as long as possible.

            The difference between your position and mine is that I believe the determination of what should come out in public should be based on whatever is best for the country, not what is best for the President or his advisors. As I said, they should feel free to speak candidly, but they should also assume Bob Woodward is in the room, and thus measure their words and conduct themselves accordingly.

            If they conduct Oval Office conversations as if they were drunks in a bowling alley, they deserve the consequnces.

          3. Michael, your argument seems to be that if the president wants to do something illegal, he can just hire a lawyer who will provide him the best case for why it is not illegal – then he is covered. It is exactly this sort of “deliberative” rationalization that particularly needs to see the light of day immediately. You have made a convincing argument for full, immediate, mandatory disclosure of these “legal” opinions.

          4. Executive privilege is something that has been claimed and asserted by presidents of both parties for a long time. As I said above, executive privilege is not absolute. If a Congressional committee demonstrates an important enough purpose and need, the privilege will fall away. That is what’s happened with Trump’s claims. The fact that a president of the other party will at some point have the opportunity and ability to release documents that a predecessor claimed should be privileged is not an argument against the existence of that privilege. In fact, it is an argument in favor of it. It has been suggested that a VP may try to use executive privilege to keep conversations about corrupt dealings a secret. Just to make it simpler, let’s say it is a president making that claim. If a Congressional committee was investigating evidence of corrupt dealings, the presumption of privilege would most likely be overcome. But even if it wasn’t, a would be corrupt president would know that eventually documents that showed real corruption or law breaking would be made public.

            Believe it or not, I don’t have particularly strong feelings on the issue. But executive privilege is something that has been claimed by presidents with the support of the Supreme Court for a very long time. It’s not quite a Chesterton’s Fence situation because I have some idea of the reasons for it. But I just don’t see strong enough reasons to abolish it, so I say leave it be. Others are of course free to disagree.

          5. Yes, we understand the history. We know that it has been claimed. The question is whether there is any legitimate basis to claim it other than national security.

            First of all, remember that withholding information from Congress is grounded in the theory of separation of powers, but withholding information from ME and YOU has no Constitutional pretext. Given that, every decision to withhold info from us should be based on what is good for America, not what is good for a few guys in suits.

            The legitimate reasons to withhold info from me, therefore, would be restricted to matters like intelligence sources, troop movements, and other things which, if revealed, would be bad for America. But there’s no justification to withhold info from me just because it would be bad for Biden or Fauci. As I’ve said before, if you don’t want people to know you have said evil shit, don’t say evil shit. Especially to the President of the United States, because his conversations belong to you and me.

            Finally, you are ignoring the main point again. Nothing is confidential from the next President. Given that, there’s no sound reason to give Biden the right to deny Congress some info in December of 2024 that the next President is free to place on the internet ten days later. If it is a matter of national security, the subsequent President will keep it secret. The only reason for a President to hide anything not related to national security is to delay our finding out about something he wants to hide.

            And anything he wants to hide is exactly what we need to know!

          6. I think the disagreement here is far broader. Secrecy, in general, is way off the rails. NatSec compartmental knowledge is a necessary evil — sources / methods, of course — but we really need some limits on both how much & for how long. Privilege, so-called, exists in private life, too. Lawyer/client, doctor/patient, press sources, etc. But nothing is ever without exception. Same as with free speech.

        2. I am entirely in agreement with UncleScoopy on this. The idea should be that the public has every right to know what the government is doing, unless there is a good, specific, and concrete reason to the contrary. Of course politicians and people in government don’t like that, because it is not to their advantage. But it is to the PUBLIC’S advantage.

          1. PS – Didn’t Bush the Younger start pushing the boundaries of executive privelege long before Trump was in office? Isn’t that where Scoopy gets his Halliburton example from? The Republican Party was far, far down the road of destroying political norms long before Trump was in office; in fact, that was the main reason Trump was able to run, let alone win.

    2. As to your final sentence – I will be surprised if there is much value in those documents, but I share your curiosity.

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