As some of us predicted earlier, the Supreme Court rejected the executive privilege claims of former President Donald Trump in his effort to block the release of his administration’s records to the House committee investigating the Jan. 6 riot in the Capitol. The decision was, in my view, the correct one and garnered a near unanimous vote from the Court. Despite the steady attack on the Court as partisan and hopelessly divided, the Court once again spoke through its decisions. As in prior decisions, the three Trump appointees voted against his arguments in support the right of Congress to gain access to the records.

In the order below, the Court declared:

“The questions whether and in what circumstances a former President may obtain a court order preventing disclosure of privileged records from his tenure in office, in the face of a determination by the incumbent President to waive the privilege, are unprecedented and raise serious and substantial concerns…

As noted earlier, I believe that the outcome was manifestly obvious under the controlling law and precedent. However, there is a notable reservation by the Court that limited the impact of the unsigned order:

Because the Court of Appeals concluded that President Trump’s claims would have failed even if he were the incumbent, his status as a former President necessarily made no difference to the court’s decision. Any discussion of the Court of Appeals concerning President Trump’s status as a former President must therefore be regarded as nonbinding dicta.

I have long been a critic of the Court making such major decisions while limiting its use as authority. It is the fluid realm of dicta where the Court makes major decisions but then cautions that it may not reach the same result in the next case. The most notable case was the reservation in Bush v. Gore. In that case, the Court expressly limited the use of the precedent.

The recount process, in its features here described, is inconsistent with the minimum procedures necessary to protect the fundamental right of each voter in the special instance of a statewide recount under the authority of a single state judicial officer. Our consideration is limited to the present circumstances, for the problem of equal protection in election processes generally presents many complexities.

Only Justice Thomas voted against allowing such access.

The other interesting element was the appended statement by Justice Brett Kavanaugh who wanted to throw down a marker on one issue for future consideration. The D.C. Circuit maintained that former presidents cannot invoke executive privilege. The appellate judges stressed that “we have one president at a time.”

Kavanaugh wanted to make clear that the order does not adopt that view:

“The Court of Appeals suggested that a former President may not successfully invoke the Presidential communications privilege for communications that occurred during his Presidency, at least if the current President does not support the privilege claim. As this Court’s order today makes clear, those portions of the Court of Appeals’ opinion were dicta and should not be considered binding precedent going forward.

…A former President must be able to successfully invoke the Presidential communications privilege for communications that occurred during his Presidency, even if the current President does not support the privilege claim. Concluding otherwise would eviscerate the executive privilege for Presidential communications.

…To be clear, to say that a former President can invoke the privilege for Presidential communications that occurred during his Presidency does not mean that the privilege is absolute or cannot be overcome.”

Here is the ruling: Trump v. Thompson