In a deep dive speculating on how much help the Supreme Court will offer to Donald Trump as he battles the January 6th committee looking at the former president's involvement, Vox's Ian Millhiser suggested the conservative-dominated court has sent mixed messages regarding Trump in the past and they may play it safe by "running out the clock."
In his analysis, Millhiser noted, "Earlier this month, a federal appeals court held that the January 6 committee may obtain records that Trump wants to keep away from this investigation. That leaves the Supreme Court, where a third of the seats are occupied by Trump’s own appointees, as Trump’s last recourse in his bid to keep whatever is in these records secret."
In a previous decision favoring Trump, Trump v. Mazars (2020), the justices allowed the former president to keep his financial information a secret --but with a singular distinction that makes it different from the current Thompson case seeking White House records.
"Trump was president when Mazars rewrote much of the law governing congressional investigations, at least when those investigations target a sitting president. Now, Trump is merely a private citizen," the analyst wrote. "Thompson, in other words, will reveal whether the Supreme Court is willing to create another carve-out to Congress’s investigatory powers — this time to benefit a Republican political leader who holds no public office."
"The Supreme Court did hold in Nixon v. Administrator of General Services (GSA) (1977) that this privilege, which protects the secrecy of certain internal White House deliberations, 'survives the individual President’s tenure.'" he continued. "But a former president’s power to keep such deliberations secret is much weaker than the power of a sitting president to do the same, and it is especially weak when the current president believes that a former administration’s documents should not remain secret."
Questioning the strength of Trump executive privilege claim, Millhiser asserts, "Even if Trump were still the incumbent president, the House committee seeks to investigate a matter of transcendent importance — a mob that breached the Capitol and that sought to undermine the duly elected government of the United States of America. So it’s unlikely that, at least under current law, Trump could keep the documents the January 6 committee seeks secret even if he were still in office."
With that in mind, the analyst suggested Trump -- as has been his habit when it comes to dragging legal dealings out for years -- is likely pinning his hopes on the Supreme Court that previosly didn't rule on Mazars until he was out of office.
"If the Court agrees to hear the case, Trump’s records will almost certainly remain secret while the case is pending before the justices — and, depending on when the justices schedule the oral argument in Thompson and when they hand down their decision, the Court could potentially delay its own ruling until after a newly elected Congress takes office in January 2023," he wrote before adding, "The Supreme Court, in other words, doesn’t even need to overrule any existing precedents in order to carry Trump’s water in the Thompson case. All it has to do is run out the clock."
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