Executive power has its limits in America

In a victory for the rule of law and the separation of federal powers, the Supreme Court of the US has noted that a bipartisan congressional committee investigating the Jan. 6 insurrection can review some of former president Donald Trump’s White House records.

The documents may fill in some blanks about Trump’s involvement in any planning for the Jan. 6 siege. Trump, through his lawyers, had sought to shield over 800 pages of information from the panel, citing executive privilege, which allows for a president to withhold certain information from public release. But in a 8-1 ruling, the Supreme Court on Jan. 19, 2022, rejected a request to block the documents from being handed to Congress.

A number of Trump’s senior aides who had been involved with efforts to stage a coup by overturning the 2020 presidential election have also drawn the Jan. 6 committee’s attention.

On Tuesday, it subpoenaed documents and testimony from Trump advisers Rudy Giuliani, Sidney Powell, Jenna Ellis and Boris Epshteyn; it has previously subpoenaed Steve Bannon and Trump’s former chief of staff, Mark Meadows.

Trump's legal battle

Trump had waged a legal battle to retain his email, phone records, visitor logs, speech drafts and handwritten notes, arguing that they were protected by executive privilege. Citing the gravity of the Jan. 6 siege and its threat to democracy, President Joe Biden waived the privilege.

A federal appeals court, also noting the severity of the attacks and the need to prevent a recurrence, ruled last month that Congress was entitled to the documents. Trump then took his argument to the Supreme Court and lost.

The court’s ruling was terse. Its unsigned order simply states that it will not grant a stay and that the question of whether a former president can assert privilege over the current president’s objections was irrelevant, “because the Court of Appeals concluded that President Trump’s claims would have failed even if he were the incumbent.”

Justice Brett Kavanaugh issued a kind of concurrence, saying he respected the court’s decision but that the appellate court was wrong to say that a former president shouldn’t be able to assert executive privilege to protect confidential communications. Justice Clarence Thomas lodged a lone dissent, saying he would have heard the case.

Despite its brevity, the order is hugely significant. It’s not every president who helps engineer a coup and foment an insurrection, and the Supreme Court has taken an important step forward in ensuring that the Oval Office’s legal privileges don’t prevent any of its occupants from being held to account.

The 800 or so pages of White House documents that have been in dispute are not under Trump’s control. The National Archives has them, and now must release them to Congress.

Incriminating evidence?

What the Jan. 6 committee then chooses to do with the documents should it find any incriminating evidence is unclear. If it makes a criminal referral to the Justice Department, then Attorney General Merrick Garland has more prosecutorial decisions to weigh. If the documents are damning, it also may be some time before the public sees them.

On the other hand, it’s still not entirely clear that the Justice Department has focused directly on Trump thus far in its own Jan. 6 probe.

And the Jan. 6 committee is working against the clock as some of Trump’s advisers continue to ignore its requests for records and testimony. If the midterm elections shift control of the House of Representatives to Republicans, the committee may get disbanded shortly thereafter.

But take heart, for the moment at least. The Supreme Court’s ruling is consistent with its previous stance on another important set of Trump records: his tax returns.

Last year, it ruled that Trump had to provide his tax returns and other financial records to New York prosecutors investigating him and his company for fraud. Trump argued then that as an ex-president, he should be immune from such requests. “In our judicial system, ‘the public has a right to every man’s evidence,’” wrote Chief Justice John Roberts. “Since the earliest days of the Republic, ‘every man’ has included the President of the United States.”

In short: Nobody is above the law. Now the court has also ruled that presidents, even once out of office, are not immune from congressional oversight. That reality carries even greater weight when it involves a president who not only incited sedition but may have helped orchestrate it.

Timothy L. O’Brien is an opinion columnist

Bloomberg