Former President Donald Trump spent much of his four-year term packing the federal court system, all the way up to the Supreme Court, with conservatives and strict constitutionalists as he worked to overturn laws protecting women’s abortion rights. But that very court system could soon turn into Trump’s nightmare as he attempts to block Congress from accessing presidential communications linked to the Jan. 6 Capitol insurrection.
The House Select Committee to Investigate the January 6th Attack is girding for a fight as it subpoenas former Trump advisers and administration officials while demanding access to White House communications at the time of the insurrection. Defiance could lead to criminal contempt charges. Trump is trying to assert executive privilege, which typically applies to current White House occupants but not necessarily to ex-presidents. President Joe Biden shows no inclination to extend any protections to someone who falsely insists, even today, that Biden stole the 2020 election.
Presidents assert executive privilege whenever another branch of government seeks access to documents or information that the sitting administration prefers not to reveal. Sometimes, it’s to protect state secrets or sensitive discussions with foreign governments. Other times, the president does it on principle: that no other branch has authority to tell the executive branch what to do.
And that’s exactly where Trump might have tripped himself up. The judges and Supreme Court justices least likely to involve themselves in the question of executive privilege are the conservative, strict constitutionalists Trump installed. Unless they are complete hypocrites — always a distinct possibility in these weird times — constitutionalists adhere to the literal wording of the Constitution. And nowhere in the Constitution is executive privilege specifically mentioned or implied.
The Supreme Court also has had a longtime reluctance to take sides in disputes between the executive and legislative branches, much less in disputes between current and former presidents. The very concept of executive privilege is based on the executive branch’s exclusive control over its own authority. For the court to involve itself in another branch’s business would be to negate the very basis upon which the executive-privilege claim exists.
Which is not to say it never happens, such as when President Richard Nixon asserted executive privilege to avoid relinquishing the secret Oval Office recordings he had made that included incriminating Watergate-related conversations. Then-Chief Justice Warren Burger, speaking for a unanimous court, stated that the “fair administration of criminal justice” superseded any “generalized assertion of privilege.”
Trump is urging former aides and advisers to defy the select committee’s subpoenas. The committee also seeks access to documents under National Archives control related to Trump’s final days in office, when the insurrection occurred. Biden says withholding those documents “is not in the best interests of the United States.” Justices could always intervene in Trump’s favor, but they would be committing blatant hypocrisy while bending their own judicial philosophy to the breaking point.