On Wednesday evening, the Supreme Court delivered a crushing blow to Donald Trump’s efforts to keep relevant White House records secret from the House select committee to investigate the Jan. 6 attack. In an apparent 8–1 decision, with only Justice Clarence Thomas noting his dissent, the Supreme Court ruled that the U.S. Court of Appeals for the District of Columbia Circuit had not made an obvious error in holding that Trump’s claims of executive privilege over the documents would fail under any test proposed by the former president.
Under federal law, the Supreme Court could only grant Trump a reprieve at this stage if “the legal rights at issue are indisputably clear.” It appears a majority of the justices did not believe the former president has an “indisputably clear” right to stop the National Archives from releasing potentially incriminating documents. Their decision means that the committee should immediately begin to receive records surrounding the events of Jan. 6 from the National Archives, prying loose critical information as to how Trump and those around him responded in real time to an ongoing insurrection that the president had inspired. The court did, however, leave the door open for Trump to raise stronger, more specific executive privilege claims to try to block testimony of other associates who have refused to cooperate with the committee. Justice Brett Kavanaugh issued a concurrence that also gave future witnesses a tool to seek to avoid testimony.
In its December decision, the D.C. Circuit strongly suggested that a former president could not claim executive privilege if the current president waived that privilege. Thus, Trump could not stop the Jan. 6 committee from obtaining records with Biden’s blessing. The Supreme Court clarified that this portion of the lower court’s opinion is not a binding precedent. Kavanaugh went further, suggesting that a former president’s privilege claims might carry similar weight as claims raised by the current president. Kavanaugh wrote:
If Presidents and their advisers thought that the privilege’s protections would terminate at the end of the Presidency and that their privileged communications could be disclosed when the President left office (or were subject to the absolute control of a subsequent President who could be a political opponent of a former President), the consequences for the Presidency would be severe.
As Kavanaugh is essentially the tiebreaking vote on this extremely conservative court, his views on the executive privilege of former presidents are likely to carry great weight should the issue come before the court again. With multiple Jan. 6 witnesses refusing to cooperate with the committee’s subpoenas, it seems inevitable that the issue may resurface—and that these witnesses’ stalling tactics may work.
Though Steve Bannon has already been charged with criminal contempt for refusing to respect a congressional subpoena, former chief of staff Mark Meadows has not been charged yet despite a criminal referral from Congress. The court’s order on Wednesday may offer a temporary reprieve for Meadows, or perhaps even a get-out-of-jail-free card, if he’s able to raise stronger privilege claims than Trump brought this time around.
As the D.C. Circuit made clear, raising a stronger claim should not be difficult given how little effort Trump’s attorneys made to demonstrate any reason whatsoever for the courts to accept his privilege claim. As the lower court wrote, Trump had failed “even to allege, let alone demonstrate, any particularized harm that would arise from disclosure, any distinct and superseding interest in confidentiality attached to these particular documents, lack of relevance, or any other reasoned justification for withholding the documents.” If Meadows or other Jan. 6 witnesses are able to raise even one specific reason executive privilege claims should shield their testimony, they will have done more than Trump did in this litigation and will have a better chance before a favorable Supreme Court.
In this case, though, Trump’s claims are toast. “Because the Court of Appeals concluded that President Trump’s claims would have failed even if he were the incumbent,” the Supreme Court held in siding against Trump, “his status as a former President necessarily made no difference to the court’s decision.”
The documents that the Jan. 6 committee will now receive should be extremely revelatory. They include early drafts of statements that Trump gave that day that failed to quell the violence as lawmakers begged him for support, a draft executive order on election integrity, and handwritten notes concerning the events of Jan. 6 from Meadows himself.
While Kavanaugh and the rest of the court left open the door for witnesses like Meadows to try to shirk their duty to testify, Wednesday’s order may make their effort to avoid testimony more difficult—if only for practical purposes. The more information that is revealed about Jan. 6, the greater odds will be that Congress can use that information to demonstrate that there is no reasonable excuse to block future revelations through privilege. As a result, Meadows and others might have a harder time convincing the justices to block the committee’s requests if and when this conflict returns to the Supreme Court.