trump prepared

It was a rough morning in court for Donald Trump in his LOLsuit to keep official presidential records out of the hands of the House January 6 Select Committee. Turns out it's a lot easier to make your case to the credulous folks at Fox News than it is to convince a federal judge that the ex-president is still in charge of the government. Whodathunkit!

The hearing started out with Trump's lawyer Justin Clark insisting that this "monumental case" presented an issue of "first impression" before the court: i.e. whether the former president's claim of executive privilege outweighs the sitting president's waiver of it. And in some sense, that's true. Literally no one was ever dumb enough to try this shit before, and so it is, indeed, a case of first impression. But that alone doesn't make it "monumental."

Clark went on to behave as if it were clear to all that the standard of review was the four-part test set out in the Mazars case, which involved a congressional subpoena for Trump's financial records in July 2020. It's a position the Trump legal brain trust has insisted on in its briefs, despite the fact that Mazars applied to a sitting president attempting to safeguard his personal financial records from congressional subpoena.

As US District Judge Tanya Chutkan immediately pointed out, this lawsuit implicates a congressional request under the Presidential Records Act (PRA) to access government records, and the sitting president has already agreed to comply with it. To his (very minimal) credit, Clark did not try to argue that the PRA was unconstitutional, as his colleague Jesse Binnall did in earlier filings. Which is good, since every other word out of his mouth was "Nixon v. General Services Administration," a Supreme Court case which explicitly affirmed the constitutionality of the predecessor statute to the PRA.

But he did say with a straight face that Mazars applies even more when it implicates issues of executive privilege. Which is a bold strategy, Cotton, since (a) Mazars had nothing to do with executive privilege; and (b) there's already an applicable statute governing the disclosure of government documents.

Judge Chutkan was having none of it.

"How are visitor logs, which reveal who came to the White House, how would those be privileged?" she asked, referring to just one of the many categories of documents the former president insists is executive privilege top secret Congress keep out.

"Even the act of meeting with an individual could be privileged," Clark soldiered on bravely, despite the fact that most presidents have routinely released the White House visitor logs.

It was a bad morning for Clark all ways round, with Judge Chutkan giving him a very polite, very well-deserved dick-kicking, even chastising him at one point to "tone down the rhetoric" when he accused the Biden administration of "driving a truck through executive privilege."

"The January 6 riots took place at the Capitol, that is literally Congress's house," she remarked incredulously at Clark's insistence that the investigation could have no bearing on legislation and thus had no "legislative purpose."

"Mr. Clark, if you can, tell me how your client is harmed by release of WH visit logs" she pressed later on.

"I can tell you the harm to the institution of the presidency, the harm to reliance interest," he stammered, only to have the court point out that executive privilege doesn't cover the "reliance interest" of third parties in hiding their contacts with the president from the public, and anyway the law contemplates the actual sitting president being the one to safeguard the "institution of the presidency."

"Isn't the person who is most able to evaluate privilege the current executive?" she asked.

And Judge Chutkan wasn't having it when Clark insisted that Congress needed to stop bothering Trump because they could simply get the information elsewhere. "Your client has instructed others who have received subpoenas not to comply," she reminded him tartly. Which is what's referred in lawtalk to as coming to the court with "unclean hands."

Clark seemed fixated on some residual privilege authority vested in the former president under Nixon v. GSA, despite the fact that Nixon lost that case pretty resoundingly.

"Can you point me to any language in Nixon v. GSA that says that?" Judge Chutkan asked at one point when the attorney attempted to argue that Trump's claim as an ex-president somehow overrides President Biden's refusal to assert privilege over the documents in question. Later she added, "I'm not sure if that case is as helpful to you as you think it is, Mr. Clark."

And when Clark attempted to fall back on a traditional invocation of privilege to demand that the court review every document and make an individualized determination, the judge seemed highly resistant to slowing the disclosure process to "a snail's pace" for what she characterized as an "intrusion by the court into executive and legislative function." Particularly, she noted, when the executive and legislative branches are in agreement that these documents should be released, and the only party objecting is some crank on a golf cart in Florida.

The government, which was represented by House Counsel Doug Letter and DOJ lawyer Elizabeth Shapiro appearing on behalf of the National Archives, fared much better. Although Judge Chutkan pressed Letter on the necessity of accessing documents from April 2020, she seemed highly receptive to the argument that there was no dispute to adjudicate if the sitting president agreed to release the documents in question.

All in all, it was a bad morning for Team Trump. Although, if their goal is not to win any of these cases, but simply to drag this process out until Rep. Kevin McCarthy takes back the gavel and sticks a shiv in the Select Committee, then it may well work out for them in the end.

[Trump v. Thompson, Docket via Court Listener]

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Liz Dye

Liz Dye lives in Baltimore with her wonderful husband and a houseful of teenagers. When she isn't being mad about a thing on the internet, she's hiding in plain sight in the carpool line. She's the one wearing yoga pants glaring at her phone.


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