Running Out Of Time

Trump's claim of executive privilege over Jan 6 documents is designed to 'run out the clock on a legislative inquiry': op-ed https://t.co/ShC5JoJ1pL

— Raw Story (@RawStory) October 18, 2021

In April, 1974, Leon Jaworski subpoenaed Richard Nixon for the White House tapes. Nixon took the case to court. By July, the Supreme Court had ruled against him.

4 months. It can be done.

Trump’s lawsuit seeking to prevent the archivist from turning records over to the January 6 Committee is remarkably thin. Courts should reject it, swiftly, for the same reasons the Biden Administration was right not to assert executive privilege over the documents (1/2) https://t.co/fcoG2fFnpc

— Kate Shaw (@kateashaw1) October 18, 2021

I’m hardly a Constitutional scholar, but my quick review of the Complaint didn’t impress me. For example:

I cannot stop laughing at the pathetic premise of Trump's lawsuit that the Presidential Records Act must be unconstitutional if it permits the incumbent president to overrule a former president on privilege issues.

What a flaccid little cry baby.

— Bradley P. Moss (@BradMossEsq) October 18, 2021

And one wonders how serious this suit is:

Reminder: the Trump lawsuit means nothing if he doesn’t file an immediate motion for a temporary restraining order (and win on that narrow procedural issue). The Archivist can start releasing the current batch of docs to the 1/6 committee on November 12th absent a court order.

— Bradley P. Moss (@BradMossEsq) October 18, 2021

If Trump can’t get a TRO (yes, first he has to ask for it), it’s game over. If he does get it, he could still lose the temporary injunction hearing; also game over. Failure to win one or both of those means the court doesn’t think Trump can prevail at trial.

So this could go very rapidly. Without a TRO or TI, it’s over by November 12. Period. Analyses like this:

Trump has sued the Natl Archives and the House 1/6 Committee, seeking to block the release of documents that he believes could be privileged.

You can call Trump lawsuits frivolous all day long, but you'd also better be prepared for a grueling legal battle.

— Katelyn Polantz (@kpolantz) October 18, 2021

Frankly ignore that little point. Besides, the Mazars argument is not as strong as the pleadings claim it is (never rely on the pleadings for the state of the law):

ALSO: Trump team badly misrepresents SCOTUS ruling in Mazars case. The court didn't "shoot down" anything but did ask lower courts for nore detailed review. That review is ongoing but House effort to get Trump's financial records has still won at just about every level. pic.twitter.com/H3H158ZI05

— Kyle Cheney (@kyledcheney) October 18, 2021

So that's not the powerful "delay" argument Polentz (and others) think it is.  Worse still is the argument that the Presidential Records Act is unconstitutional if Trump can't exert executive privilege now that he's a private citizen.  The Nixon v. GSA case that Polentz mentions in her Twitter thread is arguably about that point, but it doesn't give ex-Presidents unbridled control of official documents they left behind when they stopped being official, and it came before the PRA, which was passed in part as a response to the GSA case.

The quality of the argument from Trump’s lawyers is no more impressive than this.

The other flaw in Polentz’ argument is that Trump is no longer in charge of the DOJ. The delays he won as POTUS are no longer available to him, not if the DOJ pushes for a resolution. They can actually make things move very rapidly through the courts if they choose to. Mostly Polentz is pushing the narrative that Trump wins because courts are slow. But they don’t have to be; and as 60 filed lawsuits showed, they can decide matters, in several courtrooms, in very short order. That delay narrative, in other words, is not a legal analysis.

NEW: ‘I wrote better pleadings in law school’: Trump lawsuit likely to be rejected by courts, experts say https://t.co/A8z7lmGj8b

— Andrew Feinberg (@AndrewFeinberg) October 18, 2021

It really does matter not just what you argue, but how. The delay narrative is not Trump’s superpower. If he can’t get some kind of restraint by November 12, he’s SOL. And he’s going to have to start with a motion pretty soon.  That can be filed; whether he can persuade a court he's like to prevail on the merits, is another matter.  This case doesn't just involve the issue of Trump's privilege claims, but the issue of an investigation of violations of law.  Executive privilege doesn't protect that.

Here's the crazy thing: there are legitimate constitutional and separation of powers issues at stake in the 1/6 committee going after Trump's records. There might have even been narrow grounds to truly block some elements of the subpoenas.

This lawsuit won't do that.

— Bradley P. Moss (@BradMossEsq) October 18, 2021

EOD.