Donald Trump and his legal team have spent weeks fighting to keep secret White House documents related to the Jan. 6 attack on the Capitol. At least for now, they’re failing spectacularly.
A month ago today, a federal district court ruled against the Republican, reminding him, “Presidents are not kings.” Late yesterday, as NBC News reported, a unanimous federal appeals court came to the same conclusion.
A three-judge panel of the U.S. Court of Appeals for the District of Columbia ruled that although Trump retained some authority to claim executive privilege, it was not strong enough to overcome President Joe Biden’s decision that Congress has a legitimate need for the material.
The ruling was unsparing in its rejection of the former president’s arguments. “President Trump bears the burden of at least showing some weighty interest in continued confidentiality that could be capable of tipping the scales back in his favor…. He has not done so,” the three-judge panel wrote. He has not identified any specific countervailing need for confidentiality tied to the documents at issue, beyond their being presidential communications. Neither has he presented arguments that grapple with the substance of President Biden’s and Congress’s weighty judgments. Nor has he made even a preliminary showing that the content of any particular document lacks relevance to the Committee’s investigation.
“He offers instead only a grab-bag of objections that simply assert without elaboration his superior assessment of Executive Branch interests, insists that Congress and the Committee have no legitimate legislative interest in an attack on the Capitol, and impugns the motives of President Biden and the House. That falls far short of meeting his burden and makes it impossible for this court to find any likelihood of success.”
For those who may need a refresher about how we arrived at this point, it was nearly two months ago when the bipartisan House committee investigating the Jan. 6 attack requested extensive materials from the White House, prompting Trump to demand absolute secrecy.
In fact, the former president and his team have tried to exert “executive privilege” to block the select committee’s requests. As NBC News recently noted, as a matter of tradition, sitting presidents have shielded White House materials at the request of their predecessors. But not this time: President Joe Biden and his team concluded that there are “unique and extraordinary circumstances” surrounding the insurrectionist attack on the Capitol.
Trump and his team sued both the committee and the National Archives, which houses presidential records. Yesterday afternoon’s ruling, concluding that the disclosure decision rests with the current president and not his predecessor, was in response to that lawsuit.
So what happens now? At this point, the appellate court has given Trump and his lawyers 14 days to take their case to the U.S. Supreme Court. If they don’t, the National Archives will hand over the congressionally requested materials on Dec. 23.
More realistically, however, the Republican will appeal the case and hope for an assist from conservative justices, three of whom he appointed to the high court.
Whether the Supreme Court will take up the case — and how quickly the justices might consider the appeal — remains to be seen. The district and circuit courts considered the matter on an expedited basis, but there’s no guarantee that the justices would care about the time constraints on the congressional investigation.
If, on the other hand, the Supreme Court doesn’t want to hear the case, the former president will have effectively run out of options. While we wait for the process to unfold, let’s also note that yesterday’s ruling wasn’t just the latest in a series of setbacks for Trump, it also did no favors for some of his close associates. As Rachel noted on last night’s show, former White House Chief of Staff Mark Meadows and former White House strategist Steve Bannon are refusing to cooperate with the select committee investigating the Jan. 6 attack. The latter has already been indicted for contempt of Congress, and the former will likely soon face similar legal trouble. Both will likely go to court and argue that they don’t have to comply with investigators because it’s not a proper investigation. They’ll probably make this pitch in the D.C. Circuit — which will be problematic since a unanimous D.C. Circuit appeals ruling concluded yesterday that the congressional probe is absolutely legitimate. It’s against this backdrop that the Democratic-led House is likely to vote next week on referring Meadows to the Justice Department for defying a subpoena. Watch this space.
Steve Benen is a producer for "The Rachel Maddow Show," the editor of MaddowBlog and an MS NOW political contributor. He's also the bestselling author of "Ministry of Truth: Democracy, Reality, and the Republicans' War on the Recent Past."
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