By Norman Eisen, Joanna Lydgate and Joshua Perry / The Washington Post
Over four years in the White House, President Trump proved exceptionally adept at using his office to manipulate the legal system. But the Constitution gives no role — or powers — to ex-presidents. The result is that Trump’s run of evading accountability may finally be ending, as most recently shown by an appellate court’s skepticism Tuesday toward his attempt to block the House Jan. 6 Committee investigation.
Trump filed suit, citing executive privilege, to fight Congress’s obtaining National Archives records; including White House correspondence, memorandums and drafts of speeches about the Jan. 6 attack. A federal district court rejected Trump’s request for an injunction, ruling that President Biden — elected by the people to run the executive branch of government — gets to assert the powers and privileges of the executive. A three-judge panel of the federal Court of Appeals in D.C. put a temporary hold on the release pending Trump’s fast-tracked appeal.
As we pointed out in our friend-of-the-court brief to the appeals court, the Constitution’s framers — who led a revolution against a lifelong monarch — gave absolutely no powers to ex-presidents. They affirmatively required sitting presidents to share information with Congress. Trump’s entire argument here rests on urging judges to read into the Constitution powers that the Framers never conferred or even mentioned.
On Tuesday, the panel heard oral arguments; and they appeared to see Trump’s case as weak. As Judge Patricia Millet emphasized on Tuesday, Supreme Court precedent recognizes that the sitting president is “in the best position to assess the present and future needs of the executive branch, and to support invocation of the privilege accordingly.” Judges Robert Wilkins and Ketanji Brown Jackson echoed Millet, explaining the Supreme Court’s logic: It’s the sitting president who best understands the national interest and who engages in an ongoing back-and-forth with Congress over information disclosure.
Trump’s lawyers on Tuesday spoke about separation-of-powers principles; that is, the idea that the Constitution requires each branch of government to respect the others. But Trump no longer represents any branch of government. The real constitutional problem here is the specter of inappropriate judicial interference in the work of the elected branches. With the midterm elections less than a year away, the legislative branch seeks records as it contemplates legislation to protect our democracy from future attacks. The sitting head of the executive branch agrees that the records should be turned over. Respect for those other two branches of government is precisely why the judicial branch must work quickly here, avoiding prolonged intrusion into Congress’s legislative sphere and the sitting president’s executive prerogatives.
Prolonged judicial interference is, of course, exactly what Trump wants, undoubtedly in the hope that the House of Representatives will change hands in 2022 and withdraw the subpoena before the courts finally decide his case. In keeping with his history of asserting bogus legal claims to delay congressional investigations, Trump seems to be seeking a lengthy and utterly unnecessary process where the court individually adjudicates whether each record sought by Congress can be disclosed. His lawyers demanded that again on Tuesday.
But, as Wilkins observed, nothing in the law says that judges can or should review records “on a document-by-document basis.” To the contrary: It’s Trump’s burden to show why individual documents should be withheld. And — as all three judges noted — the former president has done absolutely nothing to make that showing for any individual document. There is neither need nor authority to delay disclosure for months or even years by parsing documents one by one.
After the argument, we feel optimistic that the records will be released. The only question is when.
This case has moved quickly so far; as these cases can if the courts are determined. The courts were much too slow in previous inquiries into Trump’s behavior, especially when he was still in office. As we pointed out in our brief, it took years for Congress to get testimony from former White House counsel Donald McGahn into Trump’s obstruction of justice around the Mueller investigation. But justice and speed are compatible. Litigation over release of the Watergate tapes took just three months and six days from the issuance of a congressional subpoena to the Supreme Court’s ruling.
Tuesday’s oral argument marked 43 days since this case was filed in the district court and 21 since the lower court ruling rejected Trump’s position. That fast pace should be maintained. It appears to clearly be having beneficial effects already: Former chief of staff Mark Meadows is now cooperating with the committee, in just the latest example of the way speed is helping justice. There can be little doubt that the lower court’s rapid rejection of the underlying privilege claims on which Meadows previously relied contributed to that; together, of course, with the message sent by the Justice Department’s speedy decision to prosecute Stephen Bannon for criminal contempt for his attempt to stymie the committee.
So the panel should issue its decision briskly. Then Trump will have to choose between asking the full D.C. Circuit to overrule the panel or going directly to the Supreme Court. He may try the circuit court just to slow things down further, although they are unlikely to support an effort to overturn their colleagues’ decision.
The Supreme Court is probably Trump’s last, best chance at protracted delay. But even there, the conservative majority should have limited patience for his attempt to assert powers that the Framers never contemplated and federal law does not provide. The court should simply deny his request to hear the case, as it does every year for hundreds of other cases that it deems meritless, and as it did with the frivolous challenges to the 2020 election that he pushed. And in the less likely prospect that it does entertain Trump’s petition, it should fast-track the case just as the Court of Appeals has done, and just as the Supreme Court itself recently did in the litigation over Texas’ new law privatizing abortion enforcement.
Timing matters here. This inquiry by Congress is urgent because our state and local officials are still confronting the ongoing assault on our democracy. The Jan. 6 attack did not happen in a vacuum, and the justice system owes it to leaders from both sides of the aisle and to the American people to get to the truth. To uphold the rule of law, Trump’s arguments should lose here. To protect democracy, they must lose fast.
Norman Eisen, a senior fellow at the Brookings Institution, was President Obama’s ethics czar and ambassador to the Czech Republic, and served as special counsel to the House Judiciary Committee during the first Trump impeachment.
Joanna Lydgate is the chief executive of the States United Democracy Center and previously served as chief deputy attorney general for the state of Massachusetts.
Joshua Perry is of counsel with Perry Guha, LLP, a litigation boutique focused on complex civil and criminal trial practice and white collar investigations.
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