The speed with which this case moved through the courts validates the committee’s urgent approach to its mission, and undercuts the weak executive privilege claims that former President Donald Trump’s allies have used to try to hide the truth from the American people.
But — perhaps as a tradeoff for the decision’s speed — it does not signal entirely smooth sailing going forward.
But the circuit court’s decision didn’t hinge on the conclusion that the sitting president’s judgment weighs more heavily than the opinion of a defeated former president. As that intermediate appellate court emphasized, Trump would lose under any legal analysis. That is because he did nothing to show why any specific document should be privileged. All he did was vaguely and generally assert privilege — but that kind of blanket assertion of privilege rarely cuts it in court.
The decision matters both for its immediate impact — the Trump documents are now being handed over, a win for democracy and accountability — and for three key things that it tells us about the congressional inquiry into January 6 and the subsequent recommendations that will follow to protect against another insurrection.
And that schedule, in turn, means a great deal to the health of our democracy — including the state and local officials who must administer secure and fair elections in the fall of 2022. Trump’s delay tactics, which allowed him to evade subpoenas for his tax returns and his henchmen’s testimony while he was president, failed him here.
Second, the decision is a warning to Trump’s circle, whose members — such as former adviser Steve Bannon — have repeatedly cited executive privilege in refusing to cooperate with the committee.
It’s true that this decision didn’t describe exactly how courts should weigh a former president’s invocation of the privilege. But it did eviscerate the strategy that ex-Trump officials have used so far. After Trump v. Thompson, vague, blanket assertions of the privilege, without any specific explanation of how the information sought is privileged and why its disclosure would hurt the executive office, likely won’t cut it.
Kavanaugh’s statement invites future mischief making. Trump may be back with more detailed — if ultimately no more meritorious — privilege claims in response to future subpoenas, whether by the committee or other authorities. But the bottom line is that this decision greatly weakens the legal underpinnings of the Trump massive resistance strategy.
The Supreme Court’s decision was a bright spot for democracy. Handed down on the same day that some US senators blocked federal election reform, the decision is a reminder that the fight to protect our democracy has many fronts — in the courts, in Congress and in states across the country — and that democracy’s defenders must prevail.