Trump’s Thin Legal Arguments
Terry H. Schwadron
Dec. 27. 2021
Try as we might to ignore it, Donald Trump keeps grabbing for our attention with his series of court challenges to anything he perceives to be an anti-Trump move.
The cumulative effect is to delay processing of issues and cases by Congress or state prosecutorial agencies in ways that highlight a bully-like quality to The Former Guy and never get towards resolution of the outstanding issues.
Indeed, what is striking about the various instances that we are seeing play out in the courts is the thinness of legal arguments, and instead presentation after presentation of a case that this case should be handled specially just because Donald Trump is the plaintiff.
In filings in federal court to block the release of White House records to the special Jan. 6 congressional committee, in lawsuits challenging New York authorities to call him for deposition over possible real estate filing frauds, in defense of a judicial order to release his personal taxes and other piled-up investigations — issues that either affect the nation or just Trump and his business personally — the Trump legal argument is that the law in question should not apply to Donald Trump.
In these filings, Donald Trump argues only that he is a victim, not a suspected wrong-doer, and thus should be exempted from the eye of government overseers whose job it is to look at such diverse issues. Surely, his never-ending list of lawyers should be able to find some actual legal grounds for these appeals and challenges, but they are often not apparent.
As a purely political matter, Trump has apparently hoodwinked the Republican National Committee into agreeing to spend $1.6 million towards all these legal bills, surely raising at least ethical questions about the spending of Americans’ campaign contributions on personal bills — something that ought to be a legal question all by itself. As an aside, it is going fast; They have already paid $121,670 in October and $578,000 in November.
Blocking Jan. 6 Records
The most recent and possibly most long-lasting challenge came last week with a Supreme Court filing to block release of White House records concerning Jan. 6 activities, including calendars, emails, phone records, video outtakes and more that fill in the gaps in public knowledge about the role Trump played in planning or in delaying response to the Capitol insurrection.
The Court has been asked to decide by mid-January but left to its own schedule might not get to it for months, a decision that certainly would color any conclusions that the politically sensitive Jan. 6 committee could possibly reach.
This time, there is an interesting, novel constitutional question here: Does Trump have a right as a former president to invoke executive privilege to shield these records when a sitting Joe Biden has declined to exempt them. As always in these Trump challenges, there is a nub of a real question.
But again, it is not backed with legal precedents or legal underpinning that courts will cite, but rather with pure political power arguments.
Two federal courts have rejected that challenge, but Trump, who apparently wants both delay in the process and the spotlight for partisan fund-raising purposes, bangs on.
No one argues that hiding the records is good for the nation, only for Trump.
As former Solicitor General Neal Katyal said on MSNBC and in op-eds that, “The president is trying to use executive privilege just to hide stuff from the American people and it’s a sure loser.” Katyal, who has argued many cases to the Supreme Court, adds that the appeal to the Court is poorly devised, and lacks any new legal argument or evidence other than asserting his own primacy as a former president.
The whole debate even skips the fact that the Constitution provides no mention of executive privilege, which might give even the Supreme Court majority conservative literalists a momentary pause. That House committee investigating the attacks sought the records from the National Archives, which gave both Biden and Trump the opportunity to object.
The Trump Argument, Repeated
Here’s the Trump argument: “Congress may not rifle through the confidential, presidential papers of a former president to meet political objectives or advance a case study,” his lawyers told the justices in an emergency application. . . These sweeping requests are indicative of the committee’s broad investigation of a political foe, divorced from any of Congress’s legislative functions.”
Basically, Trump argument is the same in the pending appeal of a decision requiring Trump to turn over tax recordsand in challenging the right of New York Atty. Gen. Letitia James to seek a deposition from Trump over possible real estate tax fraud filings that suggest that The Trump Organization hiked real estate values for lending purposes and undervalued them for tax payments, all in sworn documents that differ.
For now, the single focus that attracts me is not about the outcome of these cases, but about why Trump presents such a weak argument with his own political victimhood at the center. It makes it seem as if he, too, cares less about the literal outcome of the cases and much more about staying in the limelight and about using every tool available to buttress his overall claim that he never lost the election.
We could conclude that were he to have won the last election — or somehow manage to win the next presidential vote because of party manipulations and any possible resurgent popular support, that a prime goal would be immediate self-protection against annoying oversight and prosecutions, even if they cover periods of time in which he was not in the White House.
Even if he loses the Jan 6 argument in the Supreme Court, Trump can deal a death blow to the inquiry through constant delay until a Republican House majority kills off the committee. By his challenge, Trump is buttressing the will of supporters like Steve Bannon, Roger Stone, Jeffrey Clark, John Eastman, Michael T. Flynn, and others to snub the committee subpoenas.
That the law itself is not enough to protect Trump should be telling us something important.
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