Late in the afternoon of January 19th, the Supreme Court dealt a crippling blow to the argument of the defeated former President, when by an 8-1 majority (Thomas, J., dissenting), the Court denied Mr. Trump’s application for a stay of the mandate and injunction pending the review of the decision of the D.C. Circuit in the case of Trump v. Thompson, ordering the transmission by the Archivist of the documents sought by the House Select January 6th Committee.
In the interest of full disclosure, I note that I am an amicus, along with several others who occupied senior law and policy positions in previous Republican administrations, who filed a brief in support of the House Select Committee in this case.
In any event, in a terse unsigned opinion, the Court recognized that the question of the power of a former President to claim executive privilege notwithstanding the waiver of privilege by the incumbent President is a “serious and substantial” one. Nevertheless, the Court held that this issue need not be resolved because the Court of Appeals did not rely upon it, having held that the defeated former President’s claims would have failed even if he were the incumbent, for reasons described in United States v. Nixon, 418 U.S. 683, 713 (1974), and Senate Select Committee on Presidential Campaign Activities v. Nixon, 498 F. 2d 725, 731 (CADC 1974) (en banc).
Thus, the Court held that the part of the Court of Appeals’ opinion stating that the incumbent could overrule his predecessor was to be treated as dictum. Justice Thomas dissented without opinion. Justice Kavanaugh opined separately that he felt a need to contradict what became the dictum of the D.C. Circuit as to its view that Trump’s claim of executive privilege was trumped by his successor’s waiver, but even Kavanaugh recognized that an ex-President’s claim of privilege, like any other privilege, is not absolute.
One assumes that a package soon will be underway from the storage facility of the National Archives to the House of Representatives. As they say: “News at Eleven.”