Terry Schwadron

Nov 11, 2021

5 min read

The Privilege That Isn’t

Terry H. Schwadron

Nov. 11, 2021

The federal court rejection of Donald Trump’s claims of executive privilege to avoid providing information to the Congressional Select Committee on the Jan. 6 uprising is not only welcome, and seemingly righteous, but actually good reading.

Judge Tanya S. Chutkan’s opinion is clear, connects current events with the presidency since Richard M. Nixon and lays out clearly what will continue through more appeals what is likely to be wrangling about the meaning of powers never spelled out in the Constitution to shield the executive branch to have conversations leading to its normal decisions and orders.

That shield is at odds, of course, with Congress’ job of finding out what happened. This is a case in which the judge supports overview and gives the nod to the current president about whether to allow The Former Guy to shield from the public what was going on in and around the White House in the days before and on Jan. 6.

The judge keeps the focus on the legal matters surrounding the first instance since enactment of the Presidential Records Act in which a former president asserts this executive privilege over records that the current president says are fair game for congressional oversight.

What the ruling doesn’t say directly is that this was not normal decision-making and conversations and actions in the White House were not about protecting sensitive military or intelligence secrets. Trump and his team were plotting illegal acts, which could not be part of constitutional authority.

Indeed, the ruling about executive privilege comes as more severe sentencing was being handed down for those rioters found to have assaulted Capitol police. Still, the question hangs: Will prosecution end with the little guys? The privilege shield matters.

Next Steps

Judge Chutkan’s decision will be appealed, drawing rebuke from Rep. Bennie Thompson, D-Miss., head of the investigating committee over further delays, even as more memos and details emerge about meetings at the nearby Willard Hotel “war room” among Trump advisers to plot out Jan. 6 plans to overturn the elections, and the committee is issuing more contested subpoenas for those advisers. Trump is also seeking a temporary injunction on any order until the matter is fully resolved.

So, bottom line is that we’re in for plenty more argument here before anyone shows up with records or testimony that yes, Donald Trump not only was part of the planning of a coup against his own government but sat around watching it unfold on television as five people died in the rioting, refusing to stop it.

Trump’s Big Steal campaign has insisted for months that the only “insurrection” was the election itself. But for all his bluster, Trump refuses to go through any review of his actions and that of his advisers before and during the Capitol attack.

Thus, rather than talking about what happened and why, we’re in court arguing legalism over whether Trump has special protections against disclosing what he was doing as our president. His claim for executive privilege suggests that the power, which is an interpretation over years rather than a black-letter constitutional plank, persists forever for a former president.

“But presidents are not kings, and plaintiff is not president,” said Judge Chutkan. Congress and the Joe Biden administration, she noted, “contend that discovering and coming to terms with the causes underlying the Jan. 6 attack is a matter of unsurpassed public importance because such information relates to our core democratic institutions and the public’s confidence in them. The court agrees.”

As The New York Times notes, the case raises novel issues about the scope and limits of a former president’s executive privilege authority, and it is likely that it will ultimately be resolved by the Supreme Court. Just when does the executive privilege rules or whether there are any bounds on it.

The Privilege Itself

The Supreme Court has recognized executive powers as implicit in the Constitution to prevent the other two branches of government from gaining access to certain internal executive branch information, especially confidential communications involving the president or among his top aides, one of whom is on the hook for prosecution for contempt of Congress for ignoring a subpoena on the same grounds.

The idea is that the president need not disclose publicly all the advice coming before a policy decision, a move to encourage the president to hear multiple, candid, even contradictory avenues of advice. In that way, a valid assertion of executive privilege — privacy in communications or deliberation as described by the judge — can provide a lawful basis to deflect a subpoena from Congress to provide documents or testimony.

In neither definition, the law does not support continuing privilege forever, said the judge. The executive privilege “derives from the supremacy of the Executive Branch within its assigned area of constitutional responsibility,” she ruled, adding, “Presidential conversations are presumptively privileged, but the privilege is not absolute.” In any dispute between former president and current president, the “Court has already made clear that in such circumstances, the incumbent’s view is accorded greater weight.”

Moreover, common sense says that is not meant to cover up a crime — or potential crime. We would love to hear the logic that led advisers to tell Trump that his policy should be to rip infants away from migrant parents, for example, or about the need to hoodwink the public into believing that bleach would be a good antidote for covid. But that’s not what’s at issue here for Trump, or for the subpoenas to his henchmen who gathered at the Willard to plot out government takeover.

Of course, in the end, we would expect Trump to be proud of what he did, or to stop protesting the effort to find out what happened.

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Inflation Worries

Only anyone who has not bought gas or walked into a supermarket in the last couple of months could have been surprised by the results of the latest national Consumer Price Index, which showed a 6.2% increase over last year in a set of sample prices.

The hair-on-fire response to the new numbers reflects American impatience for immediate answers.

That the price hike was the largest monthly increase in three decades is more a matter of statistical comparisons than new information. Large increases in the cost of oil, because of international price-setting as well as various weather interferences, and in the cost of food and household goods from covid-produced supply chain kinks, should not be startling.

Sure, the headlines will resound in political slogans, but the announcement comes as jobs are being added and various other positive measures are easing — almost exactly as covid cases are recorded as going up or down.

Until we see stability from pandemic, it is hard to see immediate relief. You can choose whom to believe, Democrats talking about long-term investments, or Republicans talking only about tax cuts, but these lagging