FEAR! FIRE! FOES! AWAKE!!"

Capitol riot probe headed for 'monumental' Supreme Court ruling on whether to 'protect Trump': reporterhttps://t.co/8EGoCt6SK2

— Raw Story (@RawStory) November 5, 2021

Told ya I'd probably be back.

"If this ends up at the Supreme Court, it will be perhaps one of the most monumental decision the court has made," Costa told MSNBC on Friday.

During the Watergate scandal, president Richard Nixon was forced to release audio tapes by Chief Justice Warren Berger, because a crime had taken place — and "no president can have confidentiality when it comes to documents when a crime has taken place," Costa noted.

"That was the threshold for Berger," Costa said. "What's the threshold for this Supreme Court? That's the lingering question."

Costa said justices will have to decide whether they're going to "protect" Trump even though he is no longer in office and an insurrection occurred. If they allow Trump to keep the documents secret, it's possible "we might never have a clear answer" about what happened, especially if Republicans take control of the House in 2022.

"And that's why (Trump adviser Steve) Bannon and so many others, including (former DOJ official Jeffrey) Clark, seem to be in this wait-and-see game — just wait and hope conservative justices on the Supreme Court somehow don't have a Warren Berger moment and prompt Trump (and the release of) these documents, and especially those phone logs from Jan. 5 and 6," Costa said.

"It's almost depressing to hear the echoes of history," host Nicole Wallace responded. "I don't think a lot of people have a lot of hope or confidence that the institutions are in the same condition they were then."

Boy, is he gonna be disappointed.

To begin with, there is nothing stopping the Archives from releasing those documents next Friday (Nov. 12).  That's assuming the trial court doesn't rule in Trump's favor, which is a very safe assumption.  The D.C. Circuit is highly unlikely to issue an emergency injunction (it can't issue a stay if Trump loses, a stay wouldn't do any good.  Absent a court ruling in Trump's favor, the documents go to Congress.) because it's highly unlikely to be persuaded that it must follow the Nixon v. GSA precedent (which Trump's lawyer raised in the hearing).  Because, Robert Costa, the Presidential Records Act of 1978, long after Nixon had to turn over the Watergate tapes, is now the law the Archives is acting under. (No, Costa didn't mention Nixon v. GSA, but that's more on point in this case than the tapes case Costa does refer to.)

So whatever threshold Berger had doesn't apply here.  Change the facts and the law, change the outcome.  Executive privilege is a rather inchoate doctrine, but it's not as inchoate as it was at the time of Nixon v. GSA.  And less so since 1978.

Trump may frantically appeal to the Supremes, but I think they will bat him back down to the D.C. Circuit, and that court won't issue an injunction.  By the time Trump has a interlocutory appeal (appeal of a ruling by the D.C. Court), it'll probably be too late.  Even at the Supreme Court level, he has to show a likelihood to prevail on the merits.  If the hearing in the trial court is any indication, he can't do that.

Yes, the Supremes could issue an injunction anyway.  I just don't see them doing it.  They've taken enough heat lately over their "shadow docket" (Alito was all steamed up about that).  I think they want matters to cool down, and leaving Trump to Congress is probably just fine with them.  They've also taken heat over the Texas abortion law (which they abated slightly by rushing a full court hearing on it) and the Mississippi abortion case looms.  The Court knows it has to draw in its horns.  Trump's executive privilege claims is not a hill they want to die on.

At least, I think that's a more cogent analysis than the one from Costa, who could have been on Trump's legal team in the courtroom yesterday.  He shows as much understanding of the law as Trump's lawyer did.