Time Is Now Another Opponent Against Trump In Executive Privilege Case

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Last updated on July 18th, 2023 at 01:42 pm

Federal Judge Tonya Chutkah strongly ruled that Trump cannot hide his documents from the House Select Committee by claiming executive privilege. The much-anticipated ruling started a clock that is almost as important as the underlying issue.

Judge Chutkah’s ruling would otherwise go into effect by Friday afternoon. As known with certainty ahead of time, Trump appealed.

Judge Chutkah may have found the underlying law rather obvious, but an increasingly politicized judiciary reads the news, too. Trump must rely upon the appellate court issuing a stay, seeing a clear enough legal issue to review the underlying ruling. The Court of Appeals could deny the stay, it could take up stay the matter, but put it on light speed fast track, it could stay the ruling and put it on a slower fast track or it could set the case on the usual timetable for appeals. For now, the focus remains on the first three options, the latter is highly unlikely.

Despite the fact that the Select Committee knew it would have to deal with this issue, even a fast-tracked opinion eats away at a period measured in weeks and months, given the possible change in House leadership in a little over a year.

Judge Chutka wrote a forceful opinion, one that might result in the appellate court denying a stay. Appellate courts evaluate several factors in deciding whether to deny a stay and one of which is the damage to the Plaintiff if a stay isn’t granted, which is everything in this type of case. But another is the Plaintiff’s likelihood of winning and on that, Chutkah’s opinion set forth a forceful framework that makes an ultimate Trump victory seem unlikely. Certain appellate judges may believe Trump has no hope at all of winning and thus the damage really doesn’t matter.

Impressively, Chutkah began her ruling grounding it in real-life context, fearlessly taking on what it is that Americans care about and eschewing the tendency to ground official opinions in dry legalese: According to Politico:

Chutkan began her ruling with a recitation of Trump’s months-long effort to sow distrust in the election results, as well as his attempt to call supporters to Washington to pressure lawmakers to refuse to certify his defeat to Joe Biden. Against that backdrop, thousands of Trump supporters descended on and breached the Capitol, with hundreds violently attacking police officers and forcing Congress and Vice President Mike Pence to flee for safety.

Breathtaking and likely written to acknowledge the need to accelerate the process.

But regarding Trump’s chances of ultimately winning? Chutkah wrote:

“At bottom, this is a dispute between a former and incumbent President. And the Supreme Court has already made clear that in such circumstances, the incumbent’s view is accorded greater weight, Chutkan wrote, citing the Nixon-era ruling….

… declines to intrude upon the executive function in this manner,” Chutkan wrote. “It must presume that the incumbent is best suited to make those decisions on behalf of the executive branch.”

Chutkah’s most powerful sentence reminds the opponents, the public, and even the appellate court, that executive privilege belongs to a branch, not a person. There is no king, and the decision should be left to the executive. It is neither the court’s fault nor the court’s business, that President Biden is now President.

The appellate court will utilize the same reasoning in determining whether to grant a stay or allow the lower court’s ruling to go into effect. (It would still hear an appeal, it would just be moot at that point).

Trump based an entire impeachment premise upon two issues. He said it couldn’t be taken up after he left office. But crucially, he also said he had nothing to do with the insurrection, and he didn’t incite anything.

The fact that Trump would fight this hard, this fast, in an attempt to wrap the entire matter in a blanket of secrecy practically compels one to wonder exactly what it is that Trump might be trying to keep private, hidden, unknown and the consequences he might face were all to be revealed. For now, he’s just trying to buy time. For now, the question is whether he gets it.

Now if only the current Attorney General felt the same urgency and duty, we could be certain we would get answers. By all appearances, we must now rely upon a committed committee, alongside a politicized judiciary.

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Jason Miciak

@JasonMiciak believes a day without learning is a day not lived. He is a political writer, features writer, author, and attorney. He is a Canadian-born dual citizen who spent his teen and college years in the Pacific Northwest and has since lived in seven states. He now enjoys life as a single dad of a young girl, writing from the beaches of the Gulf Coast. He loves crafting his flower pots, cooking, and currently studies philosophy of science, religion, and non-math principles behind quantum mechanics and cosmology. Please feel free to contact with any concerns.