To paraphrase TS Eliot, the great executive-privilege debate ends not with a bang but a whimper … or perhaps a wimp-out, depending on your point of view. The Supreme Court put a final end to the challenge from Donald Trump this morning over his access to executive privilege this morning by denying cert for his appeal:
The U.S. Supreme Court on Tuesday brought a formal end to former President Donald Trump’s request to block the release of White House records sought by the Democratic-led congressional panel investigating last year’s deadly attack on the Capitol by a mob of his supporters.
The court’s decision to formally reject Trump’s appeal follows its Jan. 19 order that led to the documents being handed over to the House of Representatives investigative committee by the federal agency that stores government and historical records.
The U.S. Court of Appeals for the District of Columbia Circuit on Dec. 9 upheld a lower court ruling that Trump had no basis to challenge President Joe Biden’s decision to allow the records to be handed over to the House of Representatives select committee. Trump then appealed to the Supreme Court
Trump and his allies have waged an ongoing legal battle with the House select committee seeking to block access to documents and witnesses. Trump has sought to invoke a legal principle known as executive privilege, which protects the confidentially of some internal White House communications, a stance rejected by lower courts.
The court heavily foreshadowed this outcome with its refusal to issue a stay that would have prevented the National Archives from responding to the January 6 congressional committee. The lack of a stay allowed the archivists to supply the investigation with the records demanded, which would have made the issue more or less moot anyway by the time the court heard the arguments in an appeal. That was clearly the signal last month at the time of the refusal of Trump’s stay application; only Justice Clarence Thomas dissented, and even then did so without issuing a written statement. Justice Brett Kavanaugh wrote a concurrence that raised some potential issues, but in the end supported the decision to take a pass.
Today’s refusal to grant cert comes as no surprise, then, but this was always a quixotic adventure. Presidents have had legal issues with invoking executive privilege while in office, especially in relation to potential criminal probes and “legitimate legislative oversight” functions. The attempted use of the privilege by a former president is, well, unprecedented — and entirely outside the scope of the Constitution. Despite all of the trappings we have erected around former presidents and now even presidents-elect during transitions, they have no special authority or powers; they are private citizens just like the rest of us, at least legally speaking.
It might have been useful for the Supreme Court to make that point more explicit by hearing arguments and issuing an opinion. Courts have been loathe to intrude on executive-privilege claims, usually seeing them as political questions to be settled between the other two branches. This case doesn’t really lend itself to that option, though, since Trump is no longer in the executive branch — which is also the point of the Supreme Court’s demurral, too. It might be just as well that they passed, however, given Kavanaugh’s weird attempt to construct a graduated diminishment of executive privilege attached to persons rather than the office itself.
Trump can still try to fight it out in court, but federal judges will have heard this sotto voce message from the Supreme Court well enough. Unless Trump can convince Joe Biden to exercise privilege claims on his behalf, his presidential records will be an open book to Congress. And so will Biden’s when the day comes, and so on, and so on, and so on …
This article was originally published by Hot Air. Read the original article.
