Third time’s a charm they say, but in Donald Trump’s case it looks like three strikes and you’re still out. Maybe not. Trump’s lawyers have twice asked Judge Tanya Chutkan to block the release of 700 documents set to be delivered to the January 6 Committee Friday. Today they asked an appellate court for a temporary injunction “to preserve the status quo.” Just what status quo they’re talking talking about is unclear. Presumably, they’re still trying to fly their specious, makeweight (that’s legalese for full of shit) argument that Trump still has executive privilege. Oh, puh-leeeze!! Richard Nixon couldn’t make an executive privilege argument fly and he was still the sitting president!
But the lawyers claim they’ve got new material which it’s vital the court must hear. CNN:
“In this appeal, the Court will consider novel and important constitutional issues of first impression concerning separation of powers, presidential records, and executive privilege,” Trump’s attorneys wrote Thursday.
The dispute centers on a request by the House committee investigating the January 6th attack on the U.S. Capitol. The committee seeks records maintained by the National Archives and Records Administration (NARA) pursuant to the Presidential Records Act (PRA). The PRA was one of several post-Watergate reforms. After President Richard Nixon’s August 1974 resignation, he threatened to destroy Oval Office recordings related to the scandal that forced him from office. In late 1974, Congress passed a law forbidding the destruction of Nixon’s—and only Nixon’s—presidential records. Nixon sued, arguing that the law violated the separation of powers; in 1977, the U.S. Supreme Court rejected his argument. The next year, Congress passed the PRA to make clear that such records—from any administration—belong not to a president personally but to the American people, and that no president can legally destroy them.
NARA, the agency charged by the law with managing presidential records, enacted regulations that enable former presidents to object to the disclosure of records, but ultimately lodged the authority to decide on disclosure requests with the incumbent president. Former presidents can seek to restrict access to especially sensitive records for up to twelve years, but the statute also gives Congress access in the interim as “needed for the conduct of its business.”
The records belong to the people, not Trump.
Keep in mind, first and foremost, that nothing whatsoever anywhere in the actual Constitution gives former presidents any power. Once out of office, they become regular citizens like the rest of us. Nor, for that matter, does the Constitution even establish executive privilege. It’s a historical and court-made doctrine designed to ensure that presidents feel safe discussing matters with close advisers without fearing public disclosure and political fallout. If presidents could not discuss matters of national importance in confidence, they might not discuss them at all, which would be bad for presidential decision-making and thus bad for the American people.
Judge Chutkan acknowledged Trump’s concerns and the legal reality “that executive privilege may extend beyond a President’s tenure,” but agreed with Rep. Bennie G. Thompson—the chair of the Select Committee and a defendant in the case—that “the privilege exists to protect the executive branch, not an individual.” Hence, “the incumbent President—not a former President—is best positioned to evaluate the long-term interests of the executive branch and to balance the benefits of disclosure against any effect on the . . . ability of future executive branch advisors to provide full and frank advice.”
The bottom line here is that Trump has no case, his lawyers know he has no case, but obfuscation and delay have always been his best tools so he’s hoping to run out the clock.
His team has already signaled an intent to appeal to the U.S. Court of Appeals for the D.C. Circuit. Assuming that court rules by early 2022, the case could go to the U.S. Supreme Court, which would be positioned once again to exercise its seemingly whimsical power to hear certain cases on an “expedited” basis. The goal of Rep. Thompson’s team is that Democrats in Congress get the information before the midterms, which will occur exactly one year from yesterday.
That’s the size of it. If the January 6 Committee’s investigation isn’t wrapped up before the midterms it’s dead. And very likely so is democracy.
The courts need to stomp on his claims. And then Congress needs to pass a few laws making things clear so he can’t do it again, including the Hatch Act violations, the emoluments violations, the claims of powers that don’t exist….
I still contend that, as Sam Ervin made clear during Watergate, acts by a sitting president that pertain to hos electoral campaign or are in any way connected to his election/re-election are not official presidential duties and, therefore, should not be covered by the privilege argument. Nixon argued that his re-election was in the interest of national security. Not so, and this was made clear, as has pretty much also been made clear in the Trump fiasco.