Irreperable Harm And Its Discontents

Judge Tanya Chutkan denies Trump’s request to block the National Archives from handing over docs to Jan 6 committee, or the committee from receiving them https://t.co/0zvaN8lhFx pic.twitter.com/I6zhf9K9KA

— Mike Sacks (@MikeSacksEsq) November 10, 2021

Then it’s onto DC Circuit, though if @brianbeutler’s scenario happens, I imagine the full Democratic-dominated court would step in to lift the stay…and then hello SCOTUS Shadow Docket https://t.co/bR3qcN2YRd

— Mike Sacks (@MikeSacksEsq) November 10, 2021

Nope. Trump filed an interlocutory appeal:

Trump’s lawyers have filed their notice of appeal to the DC Circuit https://t.co/tzJVBCjiVi pic.twitter.com/VK7rj3TCYU

— Mike Sacks (@MikeSacksEsq) November 10, 2021

It is incumbent upon me to point out Trump was seeking an injunction (something that never showed up in the reporting, so, my bad) and frankly, since he couldn't get it in the trial court, his odds of getting it in the D.C. Appeals court are zip and none. OTOH, they may issue an injunction just until they hear Trump's argument, with the deadline being Friday.  I don't know if Trump has asked the trial court to stay its order, but it seems clear from the opinion (discussed below) the answer would be:  "HELL NO!"  

I'd say the trial court has pretty much taken the wind out of Trump's sails.

Thus, if a party makes no showing of irreparable injury, the court may deny the motion for injunctive relief on that basis alone.

That's from the court's opinion before it gets down to analyzing the legal issues.  It is a sign the trial court is not going to find such harm.  Spoiler alert:  it didn't.

Trump's basic argument, per the court opinion, was this:

He argues that his power to do so extends beyond his tenure in Office, in perpetuity, and that his assertion of privilege is binding on the current executive branch. Plaintiff also argues that to the extent the PRA constrains his ability to assert executive privilege, the Act is unconstitutional. In the alternative, he contends that when a former President and current President disagree about whether to assert privilege, a court must examine each disputed document and decide whether it is privileged.

This is critical, because while you may assume the appellate courts (or the Supremes) will stay proceedings until they can hear the case, they won't do it if Trump's legal argument is a farrago of legal bullshit.  Which is pretty much what that is, above.

The courts are not going to recognize an executive privilege in perpetuity, and are not going to find the PRA unconstitutional.  Nor are they going to find the former POTUS can screw the process into the ground by requiring court examination of each separate document.  Yes, the court may invent its own grounds for upholding Trump's claims; but as I've said before, I just don't think they are that interested in doing so, even on the "shadow docket."  They have enough heat coming in over the Texas abortion law and the Mississippi case that's pending.  Besides, the 5th Circuit has that turkey waiting in the wings, the ruling that Biden has no constitutional authority to issue a vaccine mandate.  Trump's case is small beer on the docket; I don't think the courts want to spend the holidays on it, especially in light of the findings of fact in this memorandum opinion (I urge you to read them, hint hint).

What I'm saying is, to get the court's attention, you have to make an argument the court might be interested in.  I think Trump has singularly failed to do that, and his track record getting into the Supreme Court really isn't very good.

Trump's argument is basically to throw out the PRA (the ruling statute) and go back to the PRMPA (the superceded statute) or just rely on Nixon v. GSA.  Which makes this passage from the court's opinion particularly trenchant:

Presidential conversations are presumptively privileged, but the privilege is not absolute. Nixon v. GSA, 433 U.S. at 447. It exists for the benefit of the Republic, not any individual, and accordingly, the presumption can be overcome by an appropriate showing of public need by the judicial or legislative branch. See, e.g., Nixon v. GSA, 433 U.S. at 447, 449; Nixon, 418 U.S. at 707; Senate Select Committee on Presidential Campaign Activities v. Nixon (Senate Select Committee), 498 F.2d 725, 730 (D.C. Cir. 1974).

Oh, and the authority of the Committee to request the documents is based, at least in part, on the Nixon tapes case. So, yeah....

And here is the passage you are most likely to see at least partially quoted:

Plaintiff does not acknowledge the deference owed to the incumbent President’s judgment. His position that he may override the express will of the executive branch appears to be premised on the notion that his executive power “exists in perpetuity.” Hearing Tr. at 19:21- 22. But Presidents are not kings, and Plaintiff is not President. He retains the right to assert that his records are privileged, but the incumbent President “is not constitutionally obliged to honor” that assertion.

That's gonna leave a mark.

I'm gonna risk boring you for a second time to make my point about what the parties bring to the court matters on what the court decides.  This is footnote 4 in the opinion:

Plaintiff also retains the right to assert his own personal “rights or privileges,” if any. 44 U.S.C. § 2204; see also Nixon v. GSA, 433 U.S. at 455-83 (analyzing former President Nixon’s assertion of personal rights, including privacy and First Amendment associational rights). Plaintiff, however, does not do so here. He makes conclusory assertions of attorney-client privilege and attorney work product, but he appears to do so as a species of executive privilege. See, e.g., Pl.’s Mot. at 3 (referring indiscriminately to “various privileges,” including “conversations with (or about) foreign leaders, attorney work product, the most sensitive national security secrets, along with a litany of privileged communications among a pool of potentially hundreds of people”); id. at 5 (referring without elaboration to “executive privilege and attorney- client privilege”); id. at 30 (referring to deliberative process privilege and attorney-client privilege in the same discussion relating to “the President”).

In any event, Plaintiff does not elaborate on these claims with sufficient detail for this court to assess them, nor would any such claim be convincing, because the records maintained by the Archivist, by definition, only include those records reflecting the “activities, deliberations, decisions, and policies” of the Presidency, 44 U.S.C. § 2203(a), and not private communications. Plaintiff offers no evidence that the records contain anything of a personal nature; in fact, he concedes that the responsive records do not involve private conversations between him and a personal attorney. See Hearing Tr. at 60:21-61:6. The court need not credit Plaintiff’s concern in the abstract.

Three points, one each for the highlighted sentences:  Trump fails to make a valid argument; he just asserts his right, basically as "king."  He doesn't elaborate his arguments so the court can respond to them.  The court has no burden to create arguments for the parties (though yes, courts do that from time to time.  Usually in bad legal opinions.)  Third, courts deal with the cases before them and the facts, not with issues of law that may arise under a different set of facts.  Change the facts, change the outcome.  It's one reason the law is never "One size fits all" and the stuff on Bad Legal Twitter is so...bad.

I like the reasoning in this bit, too, where the court rejects the claim it must examine each document to determine which are privileged and which are not:

Plaintiff appears to view the dispute as resulting in some sort of equipoise, and asks the court to act as a tiebreaker, reviewing each disputed record in camera. The court, however, is not best situated to determine executive branch interests, and declines to intrude upon the executive function in this manner. It must presume that the incumbent is best suited to make those decisions on behalf of the executive branch. 

The balance of the opinion addresses the power of Congress to request these records.  I won't take you into those weeds, but the reasoning is again sound and well-based in court rulings on the issue.  Unless Trump has a constitutional scholar on his team with a bomb they have yet to set off, his arguments aren't going anywhere on that point.  Take this as an example:

Plaintiff argues that the requests at issue here are burdensome because they are “unbelievably broad” and that their breadth is “striking” because they could “be read to include every single e-mail sent in the White House” on January 6. See Pl. Mot. at 21-24. But upon whom is the burden imposed? President Biden has determined that the requests are not so intrusive or burdensome on the Office of the President as to outweigh Congress’ “compelling need in service of its legislative functions.” Pl. Mot., Ex. 4 at 1-2. Unlike the circumstances presented in Mazars, here, the legislative and executive branches are in harmony and agree that the requests are not unduly intrusive, thus extinguishing any lingering concerns about the breadth of the requests.

That highlighted passage addresses the 'irreperable harm' issue.  Basically, Trump is no longer POTUS, the records sought are neither private nor personal, and the incumbent POTUS has approved their release. Where, then, is the harm to the former POTUS, who can't assert any personal interest in the records anyway?

And once again, what you say, matters:

The court agrees that the stringent balancing test of Senate Select Committee does not apply because, for reasons already stated, the requested records are not privileged. Indeed, at oral argument, Plaintiff’s counsel did not mention this test and instead asserted only that the Mazars four-factor test is appropriate.

The court is piling up arguments against Trump at this point, but that's because Trump failed to carry his burden to persuade the court an injunction was warranted.''

And just to tie off the "irreperable harm" issue and throw it in the dustbin:

Plaintiff fails to show that any irreparable injury is likely to occur. First, to the extent Plaintiff argues that he, as a private citizen, will suffer injury, he has not identified any personal interest that is threatened by the production of Presidential records. He claims no personal interest in the records or the information they contain, and he identifies no cognizable injury to privacy, property, or otherwise that he personally will suffer if the records are produced, much less a harm that is “both certain and great,” id., 787 F.3d at 555, if injunctive relief is denied.

And this is a nice (and necessary) summing up:

For reasons explained above, the court will deny Plaintiff’s request to enjoin Defendants from enforcing or complying with the Select Committee’s August 25, 2021, requests because Plaintiff is unlikely to succeed on the merits of his claims or suffer irreparable harm, and because a balance of the equities and public interest bear against granting his requested relief. 

Now, would the 5th Circuit toss these 39 pages aside and declare for Trump because he's Trump?  Yeah, probably; the 5th Circuit has some of the biggest bozos in the federal judiciary.  Will the D.C. Circuit do that?  No.  Flat: no. Will they hurry to resolve this case, or freeze it just to please Trump or appear "judicial"?  No.  That's not the standard.  A preliminary injunction should only be granted where the moving party has 1) shown he is likely to succeed on the merits; 2) will suffer irreparable harm otherwise; and 3) the balance of equities tips in his favor.  The court has to consider the position of the opposing party, IOW, not just freeze the status quo because there's a deadline on Friday.  Lose any one of those three, the injunction cannot go through.  The trial court shot down all three.  I don't think the D.C. Cir. or the Supremes are going to do the heavy lifting of finding all three exist between now and 6 p.m. Friday.

But stranger things have happened.  The Supremes could decide there's enough of a unique question here; then again, they could decide they have enough unique questions, and they don't want this one.  Especially since the plaintiff's arguments in the trial court were so weak.  The likeliest outcome is the Supremes decline to take it, and the D.C. circuit remands to the trial court for any further proceedings.