Former opponents President TrumpDonald Trump Jan. 6 panel demands that Meadows testify Friday or risks indictment for contempt Defense and Homeland Security: Biden celebrates Veterans Day Trump backs Texas representative who said he ‘very well could have’ committed impeachment crimes PLUS held earlier this week after a federal judge rejected his attempt to withhold documents from the House committee investigating the January 6 insurrection.
But that could end up becoming a case of “be careful what you wish for.”
The ruling, and the case in general, could easily weaken a former president’s ability to protect confidential discussions. This, in turn, could have great effects in the real world.
In today’s hyperpolarized political environment, it’s easy to imagine a future Republican president and a Republican-majority Congress putting together exactly the same logic to shame a Democratic predecessor, or hamper next rivals who had served in a past administration.
The Trump case is still making its way through the legal system.
On Thursday night, a three-judge panel of the DC Circuit Court of Appeals granted Trump a last-minute temporary injunction. That means it will not cause the contested records to be released for the time being, although President BidenJoe BidenBiden and Xi of China to hold virtual summit on Monday: Briahna Joy Gray reports: Biden ‘plays dumb’ with cancellation of student debt Defense and national security – Biden celebrates Veterans Day MORE he has taken the rare step of renouncing his predecessor’s claim that these documents are privileged.
Many experts believe that the legal fight is destined to end before the Supreme Court.
The implications of the current battles, in one form or another, are enormous.
“If you think of yourself in Biden’s position, he has to understand that not only is he the guardian of executive power … but at some point he will be out of office,” said Steven D. Schwinn, a professor at the University. . from Illinois Chicago Law School and an expert in constitutional law. “The precedent that he is setting now is opening the door for a future president to do the same.”
That principle, Schwinn argued, should theoretically lead to a president making “thoughtful decisions.” But he recognized that such an outcome was not certain.
Trump himself, Schwinn claimed, had been driven almost entirely by “crude politics” in his decision-making, and a future president could behave in the same way.
Legally, the heart of the matter in the Trump case is executive privilege.
The concept recognizes that a president needs unadorned advice while in office, and that attendees could be limited to giving that advice if they know their deliberations could be made public shortly thereafter.
Executive privilege is neither absolute nor permanent. Legal precedent recognizes that it must be balanced with Congress’s right to get the information it needs to do business. A former president generally loses the ability to restrict the public disclosure of information 12 years after leaving office.
In the current case, Trump has asserted the executive privilege of withholding hundreds of pages of Committee records from January 6.
The exceptional nature of the case has led Biden to argue that the investigation serves the broader interests of the nation, and that those interests supersede any claims of privilege.
Millions of Americans agree with him.
But the election, and the ruling of the judge backing it, has revealed the degree to which the process is widely open to partisan arms race.
Judge Tanya Chutkan, who ruled against Trump on Tuesday, noted that a sitting president is “not constitutionally bound to honor” a predecessor’s wishes regarding executive privilege.
The Chutkan ruling raises other red flags about where the nation will head.
She rejected the idea that a court could review individual documents to determine whether a claim of privilege was valid, suggesting that a claim of privilege should be confirmed or rejected in its entirety. In practical terms, that could give Congress access to whatever it wants.
Chutkan acknowledged that Congress must show that such requests must have “a valid legislative purpose.” Simply advancing an investigation is not enough; Congress must contemplate some change in the law.
But the Chutkan ruling also presents the concept of a “valid legislative purpose” extremely broadly.
Congress does not need to say in advance what laws it is contemplating. Its supposedly legitimate purpose could be served in this case by “other forms of legislation that are not currently imagined.” And it doesn’t necessarily have to produce any proposed legislation at all.
In other words, a request for a president’s records could be justified on the basis that Congress says it is contemplating unspecified legal changes that may or may not occur.
How would Democrats feel about Biden’s privileged records, or those of former President ObamaBarack Hussein Obama How America Can Prove It Is An Economic Player In Asia Once Again Economist Larry Summers Says The White House Misunderstood Inflation The Hill’s Morning Report – Presented By Facebook – Rising Prices Undermined Biden’s Agenda MORE, being acquired by a future Republican majority on that basis?
Paul Rosenzweig, a professor at George Washington University School of Law, argued that, in a normal world, it would be widely accepted that the events of January 6 were so aberrant that they require special investigation and therefore that the arguments legal facts in this case should not be applied later to other, more obviously partisan matters.
“But it is an open question, sadly, whether or not we are in a normal world,” added Rosenzweig, who served as Kenneth Starr’s senior adviser during the Whitewater investigation. “If we keep setting our standards down, do we end up at the bottom of the hill?”
Responses to the current case are, of course, fueled by outrage at the events of January 6 and by Trump’s deeply polarized views.
Public opinion on the case, especially as expressed on social media, also tends to throw all the elements of the case into one pot.
The general issue of whether Trump’s documents are privileged, for example, is almost completely separate from a much more contentious idea, put forward by Trump’s allies, than someone like Steve BannonStephen (Steve) Kevin Bannon Jan. 6 Panel Demands Meadows Testify Friday Or Risk Contempt White House Will Not Enforce Privilege Over Meadows Papers Partial Closing: Will We Get Answers By Jan 6 before it is too late? PLUS he can invoke executive privilege to avoid testifying before the committee about his dealings with the then president. This last claim is ridiculed by many jurists, who point out that Bannon was a private citizen at the time.
Some experts also argue that the dangers in the current situation are fairly mild, or pale in comparison to the possibility that Trump could thwart due process by playing for time in hopes that the Republican Party will win back the House next year and end the investigation. .
Mark Rozell, a constitutional law expert and Founding Dean of the Schar School of Politics and Government at George Mason University, objected when asked whether the entire concept of executive privilege could be hollowed out by current procedures.
“I wouldn’t say ‘hollow out,’ but rather put parameters around its proper exercise by a former president,” Rozell said. Alluding to Trump’s position, he added, “a bad claim to executive privilege does not weaken the principle itself.”
That could be true.
But in an era where American norms have proven to be far more fragile than many people thought, the current battle could resonate in the future and again hurt Democrats, including Biden himself.
The Memo is a column reported by Niall Stanage.