SCOTUS Has Cleared the Way for Trump’s Withheld Documents. Here’s What To Know.

Photo: Erin Schaff / Getty Images

Yesterday, former President Trump suffered a resounding defeat at the Supreme Court, despite having appointed three of the justices on it, all of whom ruled against him. At issue are some 724 pages of documents over which Trump had attempted to assert executive privilege. His lawyers had filed suit on October 18, 2021 to stop the National Archives from producing the documents, even though Joe Biden, as the sitting president, had waived privilege over them. 

There are two main things to understand about the ruling and these documents. First, and contrary to what many incorrectly believe, Trump did not lose his case because he is no longer the president and therefore he doesn’t have the power to assert executive privilege. Rather, he would have lost the case even if he were the incumbent. Second, and quite tantalizingly, the tranches of documents appear to comprise evidence related to the conspiracy within the White House to hang on to power despite losing the electoral college vote.

Trump Lost Because of the Strong National Interest Congress Demonstrated in Obtaining the Documents

The Supreme Court seemed in no mood to decide more than it had to in this case, and so it sought a narrow ruling. As part of its 68-page opinion, the Court of Appeals for the D.C. Circuit explained that Congress had a “uniquely weighty interest in investigating the causes and circumstances of the January 6th attack so that it can adopt measures to better protect the Capitol Complex, prevent similar harm in the future, and ensure the peaceful transfer of power.” Because the interest here shown by Congress was so high, this provided an independent ground to deny Trump’s request—one that did not even reach the question of what force and effect a former president’s assertion of executive privilege has.

In the past, when it was former President Nixon who sought to keep presidential records from being produced, it was enough to overcome a sitting president’s assertion of executive privilege to assert as a strong, countervailing interest the “right to every person’s evidence” in a criminal proceeding. Allowing Nixon’s assertion of privilege to prevail there would have seriously impeded the basic functioning of the court system. In Trump’s case, the Court of Appeals found that the interests asserted by the January 6 Committee were equally essential, and that to “allow the privilege of a no-longer sitting President to prevail over Congress’s need to investigate a violent attack on its home and its constitutional operations” would similarly gravely impair the basic function of the legislature.

Seizing upon this logic, the Supreme Court, in its single paragraph, unsigned ruling, punted the more difficult legal question. It agreed with the Court of Appeals that “President Trump’s claims would have failed even if he were the incumbent” and therefore his “status as a former President necessarily made no difference to the court’s decision.”

By declining to reach the question of how strong a former president’s assertion of executive privilege is relative to the sitting president, the Supreme Court left that question slightly open in the ongoing criminal contempt case of Steve Bannon and potentially that of Mark Meadows and others. But the logic of it can be extended to those instances as well. After all, if the former president in the face of such strong national interest cannot keep his own records from being produced, it logically follows that people like Bannon, Meadows and others cannot hide behind an even weaker, indirect assertion of executive privilege. Indeed, according to the Supreme Court’s own reasoning, they could not even do so if Trump were still the president.

If the Justice Department and the courts agree, as they should, then it will become far easier to compel testimony and the production of documents from parties who are claiming that Trump’s executive privilege somehow shields them.

The 724 pages appear to be highly relevant to the January 6 Committee’s investigation.

When documents are withheld from production based on an assertion of a privilege, it is customary for the withholding party to produce a “privilege log” that enumerates the documents and provides a description of them without disclosing the privileged contents. That log can then be challenged by the requesting party, often on a line-by-line, document-by-document basis, disputing whether the privilege even facially applies based on the log’s own description.

Here, the opinion of the Court of Appeals provided a summary of the documents, likely quoting from the privilege log generated by Trump’s lawyers. The withheld documents include the following:

“pages from multiple binders containing proposed talking points for the Press Secretary * * * principally relating to allegations of voter fraud, election security, and other topics concerning the 2020 election”;

“presidential activity calendars and a related handwritten note for January 6, 2021, and for January 2021 generally”;

“draft text of a presidential speech for the January 6, 2021, Save America March”;

“a handwritten note from *** Meadows’ files listing potential or scheduled briefings and telephone calls concerning the January 6 certification and other election issues”;

“draft Executive Order on the topic of election integrity”;

“a memorandum apparently originating outside the White House regarding a potential lawsuit by the United States against several states President Biden won”;

“an email chain originating from a state official regarding election-related issues”;

“talking points on alleged election irregularities in one Michigan county”;

“a document containing presidential findings concerning the security of the 2020 presidential election and ordering various actions”; and

“a draft proclamation honoring the Capitol Police and deceased officers Brian Sicknick and Howard Liebengood, and related emails.”

There is a great deal more known today about what the plotters inside the White House had been planning with their Congressional allies. Key to their plan, as outlined in the Eastman soft coup memo, was the submission of faked electoral certificates signed by state-level electors who had swallowed the Big Lie about a stolen election. These alternative slates of electors, it was hoped, would give Vice President Pence some colorable basis to refuse to recognize or count the votes of seven key swing states, thereby making Trump the winner. 

The January 6 Committee has already begun to receive some of these documents, and it is possible we may not hear from them with respect to what they contain for some time. This is especially true if they elect instead to work with more cooperative witnesses to gain a context for the material before making it public. Alternatively, to continue to make their case to the public, they may release some of the material sooner with statements about what it means for their investigation.

One of the key points in the investigation will be whether and to what extent Trump himself was involved in the scheme, perhaps as demonstrated by meeting notes or calendered briefings and calls. Another will be what his state of mind was, as might be shown by the text of the draft speech and draft executive order that was withheld.

One final note: While it’s theoretically possible that all this by Trump was a charade simply to delay for time, it isn’t likely that Trump fought so hard to prevent the disclosure of materials that have zero bearing or relevance to the investigation. It is, rather, far more likely that there is something in those documents that he or his team of lawyers really do not like and did not want want disclosed.

We likely will learn what that is in the near future.