Federal Judge Rejects Trump’s Bogus Assertion of Executive Privilege To Obstruct The January 6 Committee

Update to Trump’s Bogus Assertion of Executive Privilege Met With Incredulity By A Federal Judge.

The New York Times reports, Judge Rejects Trump’s Bid to Keep Papers Secret in Jan. 6 Inquiry:

A federal judge on Tuesday night rejected a bid by former President Donald J. Trump to keep secret papers about his actions and conversations leading up to and during the Jan. 6 attack on the Capitol by his supporters.

In a 39-page ruling, Judge Tanya S. Chutkan of the U.S. District Court for the District of Columbia held that Congress’s constitutional oversight powers to obtain the information prevailed over Mr. Trump’s residual secrecy powers — especially because the incumbent, President Biden, agreed that lawmakers investigating the Jan. 6 riot should see the files.

Mr. Trump “does not acknowledge the deference owed to the incumbent president’s judgment. His position that he may override the express will of the executive branch appears to be premised on the notion that his executive power ‘exists in perpetuity,’” Judge Chutkan wrote. “But presidents are not kings, and plaintiff is not president.”

Oh, burn!

Mr. Trump retained the right to assert that his records were privileged, she added, but Mr. Biden was not obliged to honor that assertion. The incumbent president, she said, is better situated to protect executive branch interests, and Mr. Trump “no longer remains subject to political checks against potential abuse of that power.”

The ruling does not necessarily mean that the National Archives will turn over the materials to the House committee investigating Jan. 6 any time soon. The case raises novel issues about the scope and limits of a former president’s executive privilege authority, and it is likely that it will ultimately be resolved by the Supreme Court.

Reporters just assume that everything goes to the Supreme Court. And I would dispute the characterization that this case presents any “novel issues” – there are controlling Supreme Court precedents from the Watergate era which the court relied on. The Court of Appeals for the District of Columbia could reject this frivolous appeal with a one sentence unsigned order: “The decision of the U.S. District Court for the District of Columbia is affirmed. APPEAL DENIED.” Game over (the deadline for the National Archives to produce the documents is this Friday). An emergency appeal to the U.S. Supreme Court from a summary dismissal of the appeal should meet with the same fate.

Earlier in the day, the same judge rejected Trump’s request for an emergency stay order. Judge denies Trump emergency motion to shield records sought by Jan. 6 committee: “Trump filed an emergency motion late Monday asking U.S. District Judge Tanya S. Chutkan to grant a stay in the case pending an appeal or an administrative injunction. Chutkan quickly denied the request Tuesday, saying the move was ‘premature.'” She said she would consider a motion for a stay by the losing party at that point.  Based upon her opinion, Judge Chutkan does not appear persuadable to grant a stay now pending appeal, nor should the Court of Appeals for the District of Columbia grant a stay (again the deadline for the National Archives to produce the documents is this Friday).

As I said, the Court of Appeals for the District of Columbia should reject this frivolous appeal with a one sentence unsigned order: “The decision of the U.S. District Court for the District of Columbia is affirmed. APPEAL DENIED.”

In a posting on Twitter, Taylor Budowich, a spokesman for Mr. Trump, said the case was destined to be appealed. He said Mr. Trump was committed to defending the right of past presidents — as well as present and future ones — to assert executive privilege and “will be seeing this process through.”

The Truth:

But in a statement after the ruling, Representative Bennie Thompson, the Mississippi Democrat who is chairman of the committee, called the lawsuit “little more than an attempt to delay and obstruct our investigation.”

“Along our country’s history, the executive branch has provided Congress with testimony and information when it has been in the public interest,” he said. “This evening’s ruling is consistent with that tradition. And in my view, there couldn’t be a more compelling public interest than getting answers about an attack on our democracy.”

The Jan. 6 committee has demanded that the National Archives and Records Administration turn over detailed records about Mr. Trump’s every movement and meeting on the day of the assault, when Mr. Trump led a “Stop the Steal” rally and his supporters then sacked the Capitol in an attempt to block Congress from certifying Mr. Biden’s Electoral College victory.

Mr. Trump — who pursued a strategy of stonewalling all congressional oversight subpoenas while in office, running out the clock on such efforts before the 2020 election — has instructed his former subordinates to defy subpoenas from the Jan. 6 committee and filed a lawsuit seeking to block the National Archives from turning over files from his White House.

Last week, Judge Chutkan, a 2014 Obama appointee, had signaled skepticism about Mr. Trump’s legal arguments. Mr. Trump’s lawyer asserted that his residual executive privilege powers meant the courts should block Congress from subpoenaing the files, notwithstanding Mr. Biden’s decision not to assert executive privilege over them in light of the circumstances.

Mr. Trump’s lawyer had argued that the public interest would be served by letting the former president keep the documents secret to preserve executive branch prerogatives. But Judge Chutkan wrote that his arguments did not “hold water” in light of Mr. Biden’s support for making them public and Congress’s need to investigate the attack without undue delays.

Congress and the Biden administration, she noted, “contend that discovering and coming to terms with the causes underlying the Jan. 6 attack is a matter of unsurpassed public importance because such information relates to our core democratic institutions and the public’s confidence in them. The court agrees.”

Mr. Biden has instructed the head of the National Archives to turn over the first tranche of the materials subpoenaed by the Jan. 6 committee on Nov. 12, unless there is a court order by then blocking him from doing so.

Harvard Constitutional Law professor Laurence Tribe was a guest on MSNBC’s The Last Word with Lawerence O’Donnell shortly after the opinion was released, and he explained what we should anticipate happening next.

Transcript (excerpt):

O`DONNELL: And we could not be more fortunate that leading off our discussion tonight is Laurence Tribe, university professor of constitutional law emeritus at Harvard law school. He`s won 35 cases in the United States Supreme Court.

Professor tribe, I hope you heard your eager students Rachel and I discussing the judge`s opinions at the beginning of the hour.

Please weave together the analysis of the judge`s opinion and what that might mean for Merrick Garland`s decision about the criminal prosecution referral for contempt of Congress by Steve Bannon.

LAURENCE TRIBE, HARVARD LAW SCHOOL: Glad to, Lawrence. I did hear your conversation with Rachel as I was finishing reading the remarkably powerful opinion by Judge Chutkan. It`s a 39-page opinion dissecting closely all of the arguments that have made by Donald Trump`s lawyers claiming that even though he`s no longer the president, he has executive privilege to prevent the turning over of hundreds of government documents, presidential documents, presidential logs, information about what he knew and when he knew it from the concept that somehow he could prevent turning that over.

She rejected that argument. We only have one president at a time and that president is not Donald Trump. The current president has to weigh the claims of executive privilege, which are designed to encourage confidential advice for the president against the needs of the country, in particular in this case the legitimate needs of Congress to find out why the coup was attempted, and why the insurrection occurred and why the role of the president and the president`s high lieutenants was in doing all of that.

Now, the only thing I can imagine my former student Merrick Garland thinking why he hasn`t acted already and I really think he should have, he`s smart enough. The case is clear. The statute says when Congress refers someone in contempt of Congress, refers them to prosecution, the U.S. attorney should convene a grand jury. The only possible argument is there are a couple of legal counsel one in 1980 and one in 2008 that suggest that when executive privilege protects the assertion by someone that he or she cannot compile with a congressional subpoena, the department should not prosecute.

Well, perhaps Merrick Garland being a good lawyer and wanting to dot his is and cross his T`s was waiting to hear a court say the executive privilege doesn`t apply to the former president when the current president doesn`t assert that privilege and when there is a legitimate need for the information. If that`s what he was waiting for, he got it tonight and if he does not move immediately it will be inexcusable.

He will in all effects and purposes, he will be objecting Congress. He will be preventing the legitimate and crucial investigation because all of these guys getting subpoenas that have no particular incentive to comply.

If Steve Bannon can get away with stonewalling not even showing up, being in contempt of Congress saying that he`s waiting for some judicial signal, he`s certainly got it tonight if nothing happens to the guy. So why should Jeffrey Clark who is also been subpoenaed, why should Eastman comply if there are no consequences like a Dear John letter, show up, please.

That`s not what these subpoenas that are and when Congress asks the Justice Department to perform its constitutional function, there is just no excuse for any further foot dragging.

I know a number of former U.S. attorneys tried to I guess make Merrick Garland look good. He`s a good guy. He`s got a lot of integrity and they tried to say maybe he`s trying to make sure everything, all the ducks are in a row.

There are no more ducks. This duck quakes like a duck, it it`s a duck and there are no more ducks left. Merrick Garland should go ahead and not get in the way of the absolute vital investigation.

O`DONNELL: Donald Trump, his lawyers said they are going to appeal this decision —

TRIBE: Sure.

O`DONNELL: — by the district court judge. Take us through that appeals process.

TRIBE: They`re going to first ask the judge herself to issue an administrative stay claiming that she really shouldn`t be so sure of herself. But she`s already explained why there is no basis for a stay. A stay can be granted if there is a probable outcome on appeal that is a reversal of what the judge did. That`s not going to happen. A stay can be granted if there is irreversible harm that is threatened to the person who has to turnover documents or show up to testify.

Here, she`s quite clearly shown that there is no harm, it`s not his private documents. These are all government documents and during the oral argument in her court when she pressed Trump`s lawyers to say what`s the harm to your client as a citizen and Trump`s lawyer said it`s executive privilege and she said, no, I`ve already explained that that`s up to the current president. You`ve lost that one she basically predicted and of course, that`s what she did.

So what`s the harm to your client as a private citizen? These aren`t his tax records. These aren`t private records. There is no harm. So there is absolutely no basis for a stay.

What will happen is you`ll go to the court appeals and ask the court of appeals to prevent the turnover of the documents at the end of the week. It will all move very fast. I don`t think the court of appeals has any basis to grant him a stay and then the documents will be turned over and the case will be moot, although, he will still try to drag it into the Supreme Court. I can`t imagine this Supreme Court finding any basis to rule for him. I can`t imagine even the three justices that he put on the court doing that.

So I think, you know, it really, the fat lady has sung. The music is over and he`s got to turnover the documents and I think Bannon has got to be prosecuted. That will require an indictment by this attorney general, the grand jury of course is body that has to return the indictment and I think we`re about to watch a very rapid show.

O`DONNELL: Professor Laurence Tribe, so lucky to have you with us tonight. We really appreciate it.

TRIBE: Glad to be here.

O`DONNELL: Thank you.