In 39 Pages, A Significant Rebuke

I read Judge Tanya Chutkan's 39-page opinion on ex-'s attempt to get papers and records regarding the insurrection of January 6 from being released. It comes down to one, simple thing: It doesn't matter if he's been president, even recently. Congress wants information, and Chutkan believes it deserves it.

Ex-'s claim of executive privilege is not ridiculous, at least not on its face. Such claims by former presidents can last for 12 years. But there has to be compelling reasons that overcome the public's (that is, Congress') need to get information. Which is to say: a former president's reasons for keeping things secret must be more important that Congress' desire to potentially make new laws based on them.

But that assumes that the former president's wishes take precedence over the one presently in office. That is never automatically true. The present president must consider a former president's request of executive privilege and becomes the balancing factor. If the former thinks the national interest is better served, he can acquiesce and keep the latter's papers and effects under wrap for up to those 12 years.

But if not, well, tough beans. Which is what Joe Biden basically said. He think we're better served by knowing things that got or might have gotten planned by ex- and associates regarding January 6. And he gets to say so first.

There are a number of presuppositions that ex- predictably made in even filing the suit:

1. Being a former president is equivalent to being the actual president. Nope, said Chutkan, that's never been true. Joe Biden is the director of the Executive Branch now, and has control over all presidential records, past and present. He gets first dibs on them. If he says they should be released, they will be.
2. A president should have perpetual control over his presidential records. Coming from him, a predictable hyperbole. That's not what the law says, though I'm guessing that's what he'll claim if and when this gets to the Supreme Court. (Once again, throwing whatever he can at a court to see if something sticks.)
3. The revelation of information of past presidents unnecessarily compromises the country. Well, that's for the present president to decide, said Chutkan. Besides, Ronald Reagan provided records on Iran-Contra, George W. Bush on 9/11, and Richard Nixon was, of course, forced to reveal his Watergate tapes--the foundation of Chutkan's decision. Ex- doesn't get to say anything about that anymore because he's no longer the president. Besides, it's what he did, in total and in parts, that has compromised the country.
4. Congress has to prove that what it seeks will lead to passable laws, and be specific about them. No, it doesn't. What it has to prove is that there's a compelling interest in discovery, and laws are possible. How can they tell the content of laws they might pass if they don't have information leading to them? Besides, if new laws regarding the counting of electoral votes and security surrounding the Capitol, aren't "necessary and proper (quoting the Constitution's Section 1)" in this instance, they never will be.
5. Congress can get the information it seeks elsewhere. But ex-'s lawyers don't say where. That's because those sources exist only theoretically, not actually. If they knew where, they would say so and point it out so that Congress could be about its business. The only source for the president's planning and plotting come from the president himself. He wants to keep those a secret. Chutkan says he can't. (I think this is something they just threw in there, knowing it's nonsense.)
6. Congress is harassing him. No, it isn't. It would if personal issues were the ones requested, perhaps. But his "activities, deliberations, and decision making in his capacity as President," is what's being sought. That's just whining, and we are sooooooo used to that.
7. The requests are overly broad. No, ex- doesn't get to decide that. Joe Biden does. And Joe Biden's approval of the requests mean that executive privilege need not be invoked. Done.
8. There is a 4-part test for invoking documents. One part, or any combination of parts, can supersede the others. Well, okay, but inapplicable here, because--see above--Joe Biden wants these documents turned over to Congress and revealed to the public. "The constitutional protections of executive privilege should not be used to shield, from Congress or the public, information that reflects a clear and apparent effort to subvert the Constitution itself," said the present White House counsel.

The Circuit Court of Appeals has stayed, for now, release of the documents, scheduled for today. The delay is frustrating and plays into ex-'s strategy to manipulate the courts to stall until something else can be planned. Of course, if he loses in appeal, it will go to the Supreme Court, which will decide whether to expedite its hearing--or not, making us wait that much longer, reducing the impact either way. 

It's just another way of saying it's too terribly bad that this awful person has ever been president--because he has control of some levers that he shouldn't have, including papers and effects that will be eventually be studied and analyzed. Those are privileges for someone who deserves them. He never should have gotten them in the first place. 

But his latest extralegal machinations, like those designed to overturn an election he fairly lost, will also run out. He will be left designing some kind of messaging making him the victim, not the additional loser in an additional battle he never should have had. We cannot simply cast him aside, try though we might. We must reckon, here too, with what we have wrought. 39 pages later, we're still left with that, despite the significant judicial rebuke.

Be well. Be careful. Get a booster like I have. With some luck, I'll see you down the road.

Mister Mark