Clowns To The Left Of Me, Jokers To The Right

NEW -- Trump went to federal court to keep his role in the Jan. 6 insurrection a secret.

At his first hearing today, the judge had ... questions.https://t.co/5oCJ892ibg

— S.V. Dáte (@svdate) November 4, 2021

It is very hard to convey just how bad this is:

Trump’s lawyers had argued that a 1974 Supreme Court case regarding Richard Nixon’s attempt to have White House recordings he had made destroyed after he resigned from office gave Trump the right to assert privilege even if Biden refused to do so. But Chutkan pointed out that Congress had superseded that case by passing the Presidential Records Act in 1978, which gives the sitting president the ultimate decision on whether to assert privilege.

“I’m not sure that case is as helpful to you as you think it is,” Chutkan told Clark. She added that Congress seemed to have a legitimate interest in finding out how the insurrection came to be. “The Jan. 6 riot happened in the Capitol. That is literally Congress’ house.”

I'm just gonna cite myself here and here. The tl;dr:  the Nixon case in '74 was completely abrogated by the Presidential Records Act in '78.  Completely.  This is the kind of mistake a first year law student would make.  Trump is not hiring the best and the brightest.

Clark further argued that Chutkan needed to grant an injunction blocking next week’s scheduled release because Trump would suffer “irreparable harm” if she didn’t. “When those documents are out the door and go to Congress, they are out,” he said.

Chutkan said she agreed that releasing the papers was irreversible, but asked what basis Trump had to keep them secret, given that they are all public records. “We’re talking about documents that are quintessentially about government business. Are we not?” she said. “Where is the harm? Tell me the harm.”

“The harm exists to the institution of the presidency,” Clark responded.

To which Chutkan countered: “Well, the current president disagrees. Shouldn’t that weigh in?” 

The answer to that question is not only "No," but "Hell no!"

 There is considerable weight to the argument that only the current president has the authority to assert executive privilege because the privilege itself derives from Article II of the Constitution and the separation of powers. A former president has no constitutional authority. As the GSA court noted, quoting the solicitor general, “the privilege is not for the benefit of the President as an individual, but for the benefit of the Republic.” The incumbent president is the one who has been elected to represent the interests of the country and is, arguably, the only one with the constitutional authority to determine when disclosure would be in the country’s interests. The GSA decision largely elides this issue because the court had no opportunity to address the extent of a former president’s authority to assert executive privilege or how the views of the incumbent would factor into such an assertion. The suit did not involve an assertion of privilege over particular information; it was a facial challenge to the act itself. The court simply adopted the view that the privilege “survives” the presidency, accepted that Nixon had some continuing interest sufficient to bring the suit, and noted that “the fact that neither President Ford nor President Carter supports appellant’s claim detracts from the weight of his contention that the Act impermissibly intrudes into the executive function and the needs of the Executive Branch.” 

I have to point out here that the GSA decision referred to is the one pretty muc overridden by the Presidential Records Act.  Maybe the current Supremes would disagree with me, but the trial court seems to think the statute replaces the GSA opinion (and besides, the facts were quite different in the Nixon case; there was not statute governing records created during a Presidency).  Basically the rule is: We only have one President at a time, and the privilege protects the office, not the individual.  Trump is voiceless in this matter, because if he isn't, then we have two (or more, considering how many of them are alive right now) Presidents at a time.

That's this point:

Both Letter and Justice Department lawyer Elizabeth Shapiro, representing the National Archives, said that the 1978 law spells out how disputes about executive privilege between current and former presidents are to be handled: with the deference going to the current one.

“They are records of the United States,” Shapiro said. “He is not personally injured by their disclosure.”

Delay?  Trump ain't gonna delay anything.  Not with this legal team.