In an 8-1 decision on Wednesday, the U.S. Supreme Court ended former president Donald Trump’s attempts to block the January 6 Select Committee’s requests for White House documents related to the attack on the Capitol. The first sentence of its order said it all: “The application for stay of mandate and injunction [by former president Trump] … is denied.” This is a critically important decision. In fact, the National Archives has already started delivering some documents to the Committee.
The Court’s order went on to state, “Because the Court of Appeals concluded that President Trump’s claims would have failed even if he were the incumbent, his status as a former President necessarily made no difference to the court’s decision.” In other words, we still don’t know if former presidents can prevail if they claim executive privilege over documents created during their presidency.
In a separate concurring statement, Justice Kavanaugh disagreed with the Court of Appeals’ “suggestion” that only the sitting president may invoke the presidential privilege for communications that occurred during a former president’s time in office. Kavanaugh argues that a former president must be able to successfully invoke the executive privilege for such communications, without regard to the sitting president’s approval, unless they involve illegal discussions or activities. He is concerned that if a president and his staff know that their communications could be subject to disclosure after that president leaves office, it would have a chilling effect on the candor necessary for the presidential decision-making process. I agree with Kavanaugh’s logic. Perhaps President Biden and staff took note of it too.
Only Justice Clarence Thomas sided with Trump. I’m not suggesting that he made a political decision, but his wife Virginia (Ginni) Thomas is a lawyer who is very active in conservative politics and a devoted follower of the former president. Ms. Thomas has reportedly promoted various conspiracy theories on Facebook, including a false claim that Bill Gates would use coronavirus vaccines to kill people and another that warned about George Soros funding a massive conspiracy against Trump.
Regardless, I suspect the Court’s decision has Trump going a little crazy by now. At last, it is official, the emperor has no clothes and a lot of his staff and some Republican members of Congress might be feeling quite naked right now too, particularly Trump’s former chief of staff, Mark Meadows. Those who have claimed executive privilege for not appearing before the January 6 Committee are probably seriously rethinking their options. Every day we are learning more about the possible crimes committed by Trump and/or his staff leading up to the January 6 insurrection. The prospect of jail time should make some of them eager to tell their story before one of their colleagues tells it for them.
To make matters worse for Trump, he is also facing legal liability in at least three other investigations. Last summer, the Manhattan district attorney charged his company with a criminal scheme to help its executives evade taxes. The former president and one or more of his children could also face charges as this case unfolds. There is also a civil case against the Trump organization that was brought by the New York Attorney General Letitia James.
Perhaps the most serious criminal case against Trump, however, could be brought by Fulton County, Georgia, District Attorney Fani T. Willis. She alleges that he illegally pressured Georgia Secretary of State Brad Raffensperger to “find” the 11,780 votes he needed to win the state. And, she has a damning audio tape of Trump’s discussion with Raffensperger. Norm Eisen, senior fellow of the Brookings Government think tank, believes that Trump is facing a “substantial risk” of prosecution in this case.
In addition, there is a possibility that the U.S. Department of Justice will bring charges against Trump related to his call to Raffensperger and/or the White House involvement in the attack on the Capitol. If the Oath Keepers’ leader and associates were involved in a seditious conspiracy, as the DOJ has alleged, why can’t that same charge form the basis for indicting Trump, Meadows, Steve Bannon and numerous other Trump staff members and associates?
It’s also worth noting that a few establishment Republicans have started challenging Trump. Sen. Mike Rounds (R-S.D.) recently attempted to debunk Trump’s lies about a stolen election. He was supported by Sen. Mitt Romney (R-Utah) and Minority Leader Mitch McConnell (R-Ky.), who appeared to be motivated by concern that Trump will become a liability in the upcoming elections. If this fear becomes prevalent among the GOP candidates in 2022, the former president’s grip on the party could seriously slip.
Due to all the mounting challenges against Trump, I believe that it’s highly unlikely he will be the GOP’s nominee in 2024. That’s not necessarily a reason to celebrate, however; the apparent number two guy on the list of potential presidential nominees is Florida Gov. Ron DeSantis. The 43-year-old DeSantis is more intelligent, in my opinion, and even more dangerous than Trump. His popularity with the Republican base puts him in an excellent position to challenge Trump for the GOP nomination in 2024.
But all that is on the horizon. For now, I’m very relieved that the Supreme Court ruling will enable a thorough, in depth report on how and why the January 6 attack occurred, one that Fox News and Republican spin masters won’t be able to ignore or refute.