SCOTUS GDRs Trump v. Thompson: Grant, Dictumize, and Retreat

In January 2016, the Jan 6 committee sought certain documents from Archivist of America. The January 6 committee wanted records from the Archivist in the USA that were related to Trump’s claims of election fraud. Trump claimed executive privilege to some documents. These documents were not protected by executive privilege, but President Biden did so. Trump filed suit against Rep. Bennie Thompson who was chairman of the January 6-committee. District Court decided against Trump. The D.C. Circuit affirmed the ruling in December. Circuit affirmed. This is the blog I wrote about it.

Below is Judge Millett’s opinion on the panel.

The central questionThis case concerns whether, in spite of President Biden’s refusal to invoke privilege, a federal judge can override the President’s decision and stop President Biden from disclosing to Congress any documents that he believes are necessary to conduct a crucial legislative inquiry. 

Ex-President Trump does not have any evidence to support this court’s inability to uphold President Biden’s decision and the agreements and accommodation reached between the Political Branches. Both branches agree there is an unique legislative use for the documents. They are relevant to the Committee’s investigation into an attack against the Legislative Branch, and its constitutional role during the peaceful transfer power. 

You got it? You got it?

Trump requested an emergency stay of his mandate on December 23rd, 2021 and an interim injunction. Fast a month after Trump filed the petition, the Supreme Court decided to act on it. The result was not as I had expected. Instead of a denial summary, the Court added a single paragraph to its reasoning. According to the Court, the D.C. has ruled on the question of separation of power. Circuit raises serious and significant concerns and is “unique”.

A request for stay of mandat and injunction while review is presented to THELEN CHIEF JUSTICE The Court has denied the request. These questions are about whether and under what circumstances an ex-President can get a court order for protection against disclosure of privilege records from his tenure, in light of the decision by the incumbent President to waive this privilege. Unprecedented and cause serious and significant concern.

The Court then pivots! D.C. Circuit committed an error by failing to decide these issues.

However, the Court of Appeals is not. had no occasion to decideIt rejected the PresidentTrump privilege claims under any of these tests and analyzed them. [he] advocated,” Trump v. ThompsonF. 4th 10, 33, (CADC 2021), without regard to his past President status. Id., at 40–46.

Judge Millett’s colleagues will surely be happy to hear that pages 40 through 46 in their opinion were not appropriate and totally unnecessary. The Court should grant the request, extinguish those six pages and then remand this case to continue proceedings. However, this is not the case. But the Roberts Court is not a court for simple matters. These six pages are instead “nonbinding dictates” by the Roberts Court.

Because President Trump was not the incumbent in the election, the Court of Appeals ruled his claims would fail. It did not matter that he had been a President before the Court of Appeals made the decision. You are invited to sign up.. at 33 (noting any “need”) [to]See also: Id., at 17 n. 2. All discussion of President Trump’s status in the Court of Appeals regarding his former presidency Therefore, they should not be considered binding dicta.

Huh? What is the best way for the Supreme Court to modify an opinion of a lower court without actually granting the request? In the absence of an appeal, the Supreme Court doesn’t have any roving authority to correct lower courts. FedCourts experts are welcome to comment on this issue. Have you ever seen a Supreme Court modify a lower court’s decision and not grant an application? Also, Korematsu is being overruled by the Supreme Court in court of history.

This entire opinion, in the end, is legal fiction. You can call it dicta. Keep in mind, Chief Justice Roberts attempted to pawn off Roe‘s viability line as dicta? The Chief is a brilliant lawyer. Our intelligence is being insulted by this absurd dicta. We are still here. The Court again gives Trump a ticket for one: Trump loses. However, no precedents are set to hinder a future president who is more worthy.

My favorite Scaliaism is “dictumizer”. This barb was used by him in Schuette v. BAMN Footnote 4’s supporters can be criticised Carolene Products. Even though the footnote was popular, it only received four votes on a Court with seven members. This dictum has been interpreted as binding law by generations of lawyers and judges. This is not the case. Justice Scalia inspires us all five years after his death.

You can read the Supreme Court order here. Trump v. Thompson“Dictumizer” is the only term that immediately came to my mind. Stern and Gressman ought to add GDR as an acronym to the lexicon. grant, dictumize,Retreat.

Justice Thomas was the sole noted dissident. Justice Gorsuch didn’t note Thomas’ dissent but that is not surprising. Gorsuch was a co-signer in Justice Kavanaugh’s concurring order. Trump v. VanceThis was Alito’s attempt to seperate himself from Trump without limiting the executive’s future. Alito might have simply exercised his right not to speak.

Justice Kavanaugh was the subject of a lengthy statement. Kavanaugh said that the D.C. Circuit’s analysis of the D.C. is not just dicta, it is also not “binding precedence!” Another dicta

This Court’s decision today clarifies that those parts of the Court of Appeals opinion were dicta, and shouldn’t be taken into consideration. binding precedent going forward.

D.C. Circuit! You should not even consider citing pages 40-46. Justice Kavanaugh felt compelled, even though this was dicta and not pre-emptential.

On this point, however, I respectfully disagree to the Court of Appeals. Even if the President isn’t supporting the claim, a former President should be able invoke the Presidential communications privilege to cover communications made during his presidency. Concluding otherwise will result in the extinction of executive privilege for Presidential communications.

Kavanaugh holds a small stake in the outcome. As President Bush’s White House Counsel, he was also the Staff Secretary. Kavanaugh was able to see every piece of paper reaching the President’s desk. Numerous communications between Kavanaugh, the President, and others were never published. The Democrats actually fought for those documents during Kavanaugh’s confirmation hearing. Do you remember Senator Booker’s Spartacus moment?  Kavanaugh speaks out of personal experience when expressing this concern.

It would lead to severe consequences for the Presidency if the presidents or their advisers believed the privilege’s protections would expire at the endof the presidency and that any privileged communications they had could be revealed when the President leaves office, or were subject to absolute control by a future President who might be an opponent of one of their former Presidents. Insufficient assurances about Continue confidentiality, [emphasis in original]It would prevent Presidents and their advisors from participating in full, open discussions on the issues that affect the President’s ability to discharge his duties effectively.

Kavanaugh admits Trump’s defeat at the end and says there is no need to intervene. Circuit’s opinion.

This is the oddest shadow docket order.