Opinion | George Conway: Supreme Court rejection of Trump's executive privilege claim strengthens Jan. 6 committee's hand - The Washington Post

Donald Trump is often his own worst enemy. But sometimes, he gets competition from his lawyers.

Perhaps no better example of that can be found than in Wednesday’s order from the Supreme Court, which summarily rejected the former president’s “emergency” request to block, on grounds of executive privilege, the release of documents to the select House committee investigating the Jan. 6, 2021, attack on the Capitol.

The court’s decision was a brutal, and personally stinging, loss for Trump. And the arguments his own lawyers advanced may have made the defeat worse.

It’s hard to lose in so many courts so quickly — unless, I suppose, you’re Donald Trump contesting election results. So much losing, you almost have to feel sorry for the former guy.

But it wasn’t just the speed with which he lost that was so merciless; equally harsh, if not more so, was the substance of the rulings against him. The decision of the court of appeals for the D.C. Circuit was bad enough: A masterful and unanimous opinion by Judge Patricia A. Millett ripped to shreds every argument Trump made.

“The Committee has sound reasons,” Millett wrote, “for seeking presidential documents in particular as part of its investigation into the causes of the attack on the Capitol,” for a simple reason: “There is a direct linkage between the former President and the events of the day.” Indeed, the court concluded, “to allow the privilege of a no-longer-sitting President to prevail over Congress’s need to investigate a violent attack on its home and its constitutional operations would ‘gravely impair the basic function of the’ legislature.”

In its perfunctory order, the Supreme Court actually made the situation worse for Trump. The court of appeals had relied, in part, on the fact that Trump was a former president — and that the sitting president had carefully reviewed and rejected Trump’s executive privilege claims.

Ordinarily, that would be a pretty strong argument to make to judicial conservatives, many of whom believe that all executive power is vested in a unitary executive — the current president.

But it was too much for the Supreme Court. The justices expressed concern that questions about whether a former president can assert executive privilege if the sitting president is willing to waive it “are unprecedented and raise serious and substantial concerns.”

So the justices actually cut back on the court of appeals’ decision: They held that, because the court of appeals had found that Trump would lose under any of the standards his lawyers had argued for — including precedents addressing privilege claims asserted by sitting presidents — there was really no need to decide what the scope of a former president’s rights should be.

In other words, the justices relied solely on the reasoning that Trump’s claims were so paltry, his privilege arguments so weak, that Trump would have lost even were he still in office.

Adding insult to injury, Trump’s own lawyers’ arguments may have helped bring the Supreme Court to that result. One of Trump’s arguments was that the lower court decisions “effectively gut the ability of former Presidents to maintain executive privilege over the objection of an incumbent, who is often (as is the case here) a political rival.” The danger, Trump argued, was that “incumbent Presidents will indiscriminately decline to assert executive privilege over a former President’s records whenever they are of the opposite political party.”

That was an excellent point — one that apparently gave the Supreme Court pause. Think of it: What if we had a future president who was so narcissistic and vindictive that, to inflict political harm on a rival, he would reject a predecessor’s privilege claim in a circumstance that harmed the country?

Put another way, what if we had a future guy who was like the former guy — or perhaps even one and the same?

No wonder the justices left open the possibility that an ex-president could assert executive privilege over the current officeholder’s objection.

The result was an even more devastating rejection of Trump’s privilege claim — in effect, an unambiguous, blanket holding by the Supreme Court that presidents who incite insurrections in office don’t get to invoke executive privilege.

Good work, Team Trump. A grateful country salutes you.

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January 21, 2022 at 08:04PM
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Opinion | George Conway: Supreme Court rejection of Trump's executive privilege claim strengthens Jan. 6 committee's hand - The Washington Post
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