SCOTUS Was Right to Reject Trump's Effort to Block the January 6 Subpoena But Wrong to Call the Issues it Left Open "Unprecedented"
by Michael C. Dorf
In a brief order today, the Supreme Court rejected former President Trump's request for emergency relief that would block the release to the House Select Committee on January 6 of various presidential records on grounds that they are privileged, notwithstanding President Biden's determination not to invoke the privilege. Trump's request in principle raised an important question: how much weight should a former president's attempted invocation of executive privilege be given in the teeth of the incumbent's rejection of that invocation?
However, as the Court also noted, the appeals court ruled that even giving Trump the same power to invoke executive privilege as an incumbent would enjoy, the House Select Committee subpoena prevails. After all, under United States v. Nixon, a president does not enjoy an absolute privilege; and per Trump v. Mazars, that's also true of a privilege asserted as against a congressional investigation. So Trump's latest application to the Supreme Court didn't present the important question of how to weigh conflicting claims by incumbents versus former presidents; Trump loses even under the most generous standard.
Yet the Court's order did not say that the issue that was ultimately not presented was merely important. The Court said that the key questions are "unprecedented." That's pretty clearly false. Although it's true that no prior case is exactly on point, one precedent is highly relevant, Nixon v. GSA. There the Court laid out the basic framework: the incumbent does not have absolute power to eliminate the privilege of a past president. "At the same time, however, the fact that neither President Ford nor President Carter supports [Nixon's] claim detracts from the weight of" his privilege argument.
Thus, if the Court had to reach the question, Nixon v. GSA would seem like the logical starting point. That's why, in my constitutional law exam last month, when I asked my students pretty much exactly the question the Court avoided today (in Question 3(b)), I specifically instructed them not to treat Nixon v. GSA as controlling. I knew that if it were treated as controlling, the question would be a bit too easy.
Accordingly, Justice Kavanaugh's concurrence in today's order is peculiar in its failure even to mention Nixon v. GSA. He begins by attributing to the appeals court the view that President Biden's determination is absolutely conclusive simply because he's the incumbent. I don't read the appeals court to go that far. Rather, the appeals court places extensive reliance on Nixon v. GSA, giving what is effectively presumptive weight to the incumbent's decision not to invoke the privilege and finding nothing offered by Trump that comes close to overcoming the presumption.
Today's order and Justice Kavanaugh's concurrence thus leave us with a lingering question. Did they really mean to suggest that in addressing a conflict of this sort in the future the Court should treat Nixon v. GSA as an irrelevancy? On what possible ground? That ruling seems eminently sensible. It reasons that many of the grounds for protecting executive privilege for an incumbent also apply to past presidents, but that where there is a conflict between a current and a past president, considerable weight should be given to the incumbent's views on the ground that there is only one executive branch at a time. Even so, the Nixon v. GSA Court left open the possibility that in a strong enough case, a former president's claim of executive privilege should prevail over the objections of an incumbent.
To be sure, as the appeals court noted, there are some differences between Nixon v. GSA and the Trump case, so one could imagine a clever opinion distinguishing the case. But the decision to ignore it--as both the lead opinion and Justice Kavanaugh's concurrence do--is difficult to explain.