Is the Trump case about "executive privilege" going to the Supreme Court?

[kentuck]

Or will it be thrown out and rejected before it gets there?

If it goes to the Court, does anyone know how Alito, Thomas, Kavanaugh, Gorsuch, Coney Barrett, or John Roberts might vote?

If it made it all the way to the Supreme Court, it would be very unpredictable.

It seems so clear cut. Why would the Court even get involved with it?

But, as others have noted, the lawsuit by Trump is not about merit, it is about delaying and obstructing the justice system.

[FBaggins]

1. Eventually

Unless he stretches it out long enough that they retake the House and drop the whole thing.

[albacore]

2. I worry about that very thing...

...and I throw up in my mouth just a little when I do.

Lots of us talk about the end of democracy.... that's it.

[kentuck]

3. How can they drop an ongoing criminal case?

They could shut down the Committee, I suppose? But would that stop the criminal case from continuing? Once the DOJ has the case, do they really need the Committee?

[FBaggins]

6. There is no ongoing criminal case

If one does start up, it would likely cease if the House changed hands - since you can hardly be in contempt of a subpoena to appear if the subpoena is withdrawn.

[kentuck]

10. Thanks for the clarification.

So, if the DOJ prosecutes the case, everything can be shut down by a new Congress?

[C_U_L8R]

4. Only the Executive has the privilege.

And Trump ain't it.

A judge would have to be demented or corrupted to entertain this case for more than a minute.

[Lovie777]

5. And yet it may happen with the 5 RW judges. .. ..

[C_U_L8R]

8. Then they might be both. Corrupted and demented.

But truth is, not all of them are, all the time.

[Volaris]

23. I dont think that will happen...SC (especially conservative-leaning ones)

Tend to take Seperation of Powers very seriously...especially Executive Branch Powers. They will NOT undermine privledge discretion of the sitting executive to protect the former;
it means handing Congress power at the sake of the Executive Branch.

Even if that means Trump has to go pound sand, I dont think theyll do it.

[FBaggins]

9. Not at all so simple

Former president can absolutely claim the privilege. That doesn’t mean that it would always stand up in court (even for sitting presidents), but it does mean that they have to go through the process - which could take many months.

[C_U_L8R]

13. Claiming privilege to overthrow the US could be a bit different.

But yes, Trump is often a master at gumming up the process. It just didn't work out the way he planned in the election.

[FBaggins]

20. Again... I don't expect it to succeed (unless delay becomes succeess)

But “only the current president can claim the privilege” has already been rejected as an argument.

[onenote]

15. Were Justices Marshall, Brennan, etc. in Nixon v. GSA demented?

The majority opinion in Nixon v. GSA, 433 US 425 (1977), written by Justice Brennan and signed onto by, among others, justices Marshall,Stevens and Stewart stated thusly:

"it is argued, such claims may be asserted only by incumbents who are presently responsible to the American people for their action. We reject the argument that only an incumbent President may assert such claims, and hold that appellant, as a former President, may also be heard to assert them."

The Court went on to say:"we think that the Solicitor General states the sounder view, and we adopt it:

"This Court held in United States v. Nixon . . . that the privilege is necessary to provide the confidentiality required for the President's conduct of office. Unless he can give his advisers some assurance of confidentiality, a President could not expect to receive the full and frank submissions of facts and opinions upon which effective discharge of his duties depends. The confidentiality necessary to this exchange cannot be measured by the few months or years between the submission of the information and the end of the President's tenure; the privilege is not for the benefit of the President as an individual, but for the benefit of the Republic. Therefore the privilege survives the individual President's tenure."

Ultimately, as that case makes clear, where the incumbent president disagrees with the former president, the incumbent's views as to whether the privilege is appropriate are entitled to great weight. But it simply is wrong -- clearly -- to say that Trump cannot assert executive privilege. The courts may (and should) reject that claim, but not on the grounds that he has no standing to make it.

[C_U_L8R]

19. I'd like to see if they'd rule the same on Trump's insurrection planning

[kentuck]

26. It does seem to be in the details of what is being investigated?

They are asking for documents related to the attack upon our Capitol and our democracy. They are not asking about legitimate information that was exchanged in a policy decision or about political differences with the other Party. It would seem that would make all the difference in the world in a judge's ruling?

[Justice matters.]

27. Not only that. Satan Bannon was out of the Executive Branch in 2017...

It would be just a sham if they'd rule in the orange terrorist's favor, so they won't.

[onenote]

28. The issue of standing would be the same.

As I pointed out -- and as the justices in the Nixon case concluded -- while it ultimately is up to the courts to decide where there are conflicting positions on executive privilege by a former and incumbent president, the views of the incumbent president generally are entitled to greater weight. Thus, while recognizing Nixon's standing, the Court ultimately decided against his claim because the incumbent president favored release of the documents.

Thus, Trump should lose, but not because a judge would have to be demented to hear the case. But because Biden's position, under these facts, should be given greater weight.

That this is the situation presented here doesn't mean there is no instance in which a former president's assertion of executive privilege should not prevail. Imagine for a moment that while he was in office, he sought to have documents reflecting conversations between VP Biden and President Obama publicly released, knowing that doing so might be politically advantageous to him. We would very much have wanted Obama to have standing to assert executive privilege as to those documents and to make the case that executive privilege should be honored over Trump's waiver of the privilege.

[brooklynite]

7. Lets understand the judicial process

If Trump loses in Federal Court, the documents WILL be provided to the House UNLESS the Court of Appeals issues a Stay. If that doesn't happen (even if the Appeals Court takes the case), he's effectively lost.

[kentuck]

11. What does it mean "to issue a stay"?

What would that consist of?

[brooklynite]

17. A Stay is a suspension of the lower Court's ruling...

...pending the Court of Appeals reviewing the case.

[kentuck]

21. I could see an individual judge issuing a stay...

..for whatever reason...

But it would seem a little more difficult getting the Appeals Court to approve the stay, unless they were partisan judges appointed by Trump?

What would you think might happen at the Appeals Court level?

[onenote]

30. I think a stay at the appeals court level would be likely

The irreparable harm argument, while not dispositive, likely would carry the day since one can't put the genie back in the bottle once the documents are released.

[kentuck]

33. Would the fact that the DOJ had taken the referral have any impact or influence upon a judge?

If the AG of the United States says, yes, we need the documents in our investigation, would that affect how a judge might rule?

[onenote]

38. Not necessarily - and there's good reason to fear the Supreme Court on this one.

Keep in mind that in Nixon v. GSA, Burger and Rehnquist dissented, arguing not merely that Nixon had standing to assert executive privilege, but that presidential papers belong to the president during whose term they were created and thus the current president cannot override a former president's assertion of privilege (the analogy being to other forms of privilege, which generally cannot be waived by a third party). The only exception that they were willing to acknowledge (albeit reluctantly) was the compelled disclosure of presidential papers in Nixon v. US (which occurred while Nixon was president). The distinction, they concluded, was based on that case involving a judicial-executive branch conflict rather than a Congressional-executive branch conflict.

Put another way, the conservatives on the Nixon v. GSA court felt strongly that legislative subpoenas cannot be used to force a president to give up his/her presidential papers. Only if the documents were being sought in the context of a criminal case where the documents were relevant would, in their view, overriding the privilege be appropriate.

In this instance, the demand for the documents is from Congress and resolving whether Bannon is guilty of contempt is separate from that demand. This presents a classic Catch-22: to overcome the Burger/Rehnquist position (which we can safely assume will be followed by a majority of the current court) the documents would have been subpoenaed in the context of a criminal proceeding and Congress cannot act as a criminal tribunal and thus its subpoena only can be justified as necessary for a legislative purpose.

While I think Trump is more likely than not to lose at the District Court and Court of Appeals level (although I wouldn't bet my life on it depending on which judges hear the case), I think his chances of winning at the Supreme Court are better than 50/50.

[brooklynite]

35. Yes, but...

An Appeals Court case is based on a review of judicial process, not facts in evidence. Trump's lawyer would have to make an argument that the initial trial was flawed in some way.

[The Magistrate]

18. Also, Sir

Circuit court judges may stay their own orders, pending appeal.

[FBaggins]

12. The claims are not limited to documents

Additionally - the factor you’re considering is effectively “irreparable harm” that makes it more likely there will issue a stay

[kentuck]

14. But don"t you have to define what you are claiming "executive privilege" for?

You could not claim executive privilege for inciting an insurrection and then claim you do not have to provide any documents to Congress, could you?

Isn't the devil in the details?

And once the DOJ decides to prosecute the case, is it then out of the hands of Congress?

[The Magistrate]

22. How The Office Of President Is Harmed, Sir

Is a point that would need to be made. Risk of harm to Trump himself does not involve the office, and it is only in the interests of the office, not of the person who holds it, that the privilege holds. In the face of the current President waiving any privilege, a court would have to rule that the Office and Trump were one and the same, regardless of the current officeholder's view. Even the current court might shrink from that.

[FBaggins]

29. If that's a longer way of saying

“only an incumbent President may assert such claims” - then the argument has already fallen.

If it’s another way of arguing that he wouldn’t win at SCOTUS on the specifics… I think you’re correct.

But again… the length of the process in getting to that point may be all he’s hoping for.

[The Magistrate]

48. The Second, Sir

In this instance the plaintiff is in a particularly weak position.

This is the sort of thing that by tradition would move pretty quickly, weeks not moths or years. These aren't private entities in dispute, but the very business of government.

[FBaggins]

49. Agreed - except as to the last

What reason would there be to expedite it? We aren't talking about an active impeachment hearing and a sitting president. Congress' only valid interest here is in possible legislation relating to the events around the certification of presidential elections... but the next presidential election is over three years away.

[onenote]

24. To be a tad more precise

If (hopefully when) Trump loses at the District Court, he will have an appeal as a matter of right to the Court of Appeals. In all likelihood, Trump would seek a stay first from the District Court and that court doesn't grant it, he could try the Court of Appeals, and after that the Supreme Court. The strongest argument for giving him a stay would be irreparable harm -- i.e., the genie can't be put back in the bottle if the documents are released. The strongest arguments against a stay would be based on a court's view that Trump was unlikely to succeed in his appeal(s) on the merits and that the public interest favors allowing the documents to be released. My guess is that somewhere along the line, a district court ruling against Trump will be stayed pending appeal.

The stay issue having been resolved, the court of appeals could do one of several things. It could decide the case based on the written briefs alone, or it could hold oral argument as well. It then could decide to affirm or reverse; it also could remand the case for further district court proceedings. In theory, the losing party could seek further review by the full appeals court "reconsideration en banc" but it is unlikely that would be granted.

Eventually, regardless of which way the appeals court rules, one side or the other likely would seek SCOTUS review. The SCOTUS first would have to decide whether to grant certiorari. That takes four votes and is likely a given in this instance no matter which way the appeals court ruled. The Court, having granted cert, could decide the case summarily without further briefing or oral argument, or it could have a full briefing schedule and argument and then issue a decision.

[lark]

16. If it goes to SCOTUS, we will likely lose.

Alito and Thomas will auto support almost any extreme rw claim, including this one. Gorsuch & Kav go right along and drumpf is assured of being our next dictator by his repugs fascist plants.

[FBaggins]

25. I doubt it

They might rule against us if something were to become of the hearings… but on the question of whether a former president can block Congress’s access to relevant information in this type of investigation? I doubt it.

[onenote]

39. See post #38.

I hope you're right, but fear that the conservative wing of the Court will follow the Burger/Rehnquist dissents from the Nixon v. GSA case.

[kentuck]

42. I don't see how they could use precedent in their decision?

They are not even close to the same, it seems to me. The fact that there was an attack upon our Capitol and the possibility that there were ringleaders behind it, would seem to be constitutionally strong for the Congress, it would seem?

But, I am no attorney.

[FBaggins]

44. I think the third paragraph in 38 is particularly perceptive

You may be right.

[lark]

52. Hope you are right, but they have created other fake rights and could easily do so again.

After all handmaiden said roe v wade wasn't established because too many people (right wingers) disagree so the law isn't a precedent. In their little brains, if the right wing disagrees it's bogus - but left wing dissent, as in Citizens United is nothing but fluff.

[Justice matters.]

31. Satanic Bannon is not in the Executive Branch since 2017.

Therefore, Executive Privilege does NOT apply to anything between the orange terrorist and him that pertains to events happening after November 2020.

End of that silliness.

[FBaggins]

41. When has that mattered?

The privilege (to the extent it exists) protects "the valid need for protection of communications between high Government officials and those who advise and assist them in the performance of their manifold duties". I don't see a requirement that presidents only receive advice from people employed in the executive branch.

Also - your "events happening after November 2020." seems to imply that you think that presidents cease to be presidents on election day rather than at the inauguration.

[onenote]

43. I agree. I don't think one can rule out the privilege extending to communications

between the President and a non-official giving him advice.

[FBaggins]

45. Certainly not by waving your hands at it as #31 does above

If Biden needs to get expert advice on something - do we really want to say that the person needs to be added to the roles of the executive branch before they can speak to the president confidentially?

[Justice matters.]

50. Admitting-to-be-guilty-by-accepting-a-pardon Bannon will not get a free pass by the SC.

The USSC will not give a free pass to such a guilty felon.

The other 3, maybe the current SC will. Bannon's EP will be dismissed.

[FBaggins]

51. Nobody said he would

They just pointed out that your legal analysis on the matter was worth just what we paid for it.

[Justice matters.]

32. See #31 just above. n/t

[ananda]

36. I don't see the point of Exec Privilege in the first place.

After all, we do have a line of succession.

[onenote]

47. Imagine Trump seeking to release confidential communications between Obama and Biden

in an effort to harm Biden politically during the campaign.

The need for a president to receive unfiltered advice without risk that those communications will become public -- which would of necessity deter candid advice -- is not insubstantial and has been recognized from the earliest days of the nation.

[Historic NY]

37. The Judicial Branch telling the Executive Branch what Executive privliege is?

I think they will decline

[onenote]

46. They didn't decline in Nixon v. US

And there have been a few subsequent cases where claims of executive privilege have been resolved in the courts.

[Victor_c3]

40. If you can't go after a sitting president because of executive privilege ad you can't go after a for

mer president for the same reason, then when is a president ever accountable for their actions?