You can dismiss this ruling based on the composition of the panel if you like. Two of today’s three judges were Obama appointees and the third was a Biden appointee. (The Biden appointee was Ketanji Brown Jackson, who may yet end up on the Supreme Court.) But don’t get your hopes up about SCOTUS reversing on appeal. Trump’s case here has always been weak. Congress says the records should be turned over; the sitting president agrees that the records should be turned over; and the question at issue, a former president’s complicity in the effort to overturn an election and install him in power illegally, is obviously of national importance. Seems like a strong argument for turning the records over.
The suspense now isn’t whether the Supremes will reverse the D.C. Circuit, knowing how it would look for five Republican justices to shield Trump from congressional scrutiny in a matter as grave as this. The suspense is whether SCOTUS will take the case and affirm or whether it’ll do what it did with the nonsense Texas lawsuit last year and decline to hear it at all.
They might take the case, as they may want to weigh in on what degree of executive privilege a former president can lawfully assert to thwart prosecutors and other investigators from obtaining evidence against him from his own records. It’d be better for the January 6 committee if they declined to hear the matter, though, as the panel has only a year to finish its work before a new Republican House majority takes over and corruptly disbands them.
The key bit from the D.C. Circuit opinion:
It ends this way:
Trump has 14 days to petition SCOTUS to hear his appeal. Remember that it takes only four votes for the Court to grant cert. Can he get four out of six Republican appointees to do him a solid here, mindful that he personally appointed three of them?
I’m guessing … no, he can’t. And if he does, he won’t like the outcome. But the crazed statement he inevitably puts out afterward accusing Gorsuch, Kavanaugh, and Barrett of “disloyalty” will make it all worth it if they do take the case in the end.
Coincidentally, hours before this ruling was handed down, the Guardian obtained a PowerPoint that apparently had ended up in Mark Meadows’s hands before January 6. Here’s what the chief of staff to the president of the United States was looking at as Congress prepared to certify the electoral college vote:
This wasn’t just Trump babbling at Pence that he’s gotta do something, in other words. There was an entire procedural strategy behind this coup attempt, worthy of a PowerPoint presentation, involving the office of the president. Admittedly, it wasn’t a good procedural strategy. Gabe Malor notes that there were no “Republican electors” to “seat” because no legislature in a state won by Biden certified any Republican electors. And the electors had already voted before January 6; all Congress was doing was counting the votes already cast by the electoral college.
But the “delay” strategy could have worked. It would have torn the country apart if Congress had declined to certify, as Republican voters inundated legislators in swing states won by Biden to somehow undo their results and Democrats took to the streets to protest. Trump might have insisted that the turmoil required him to remain in power beyond January 20 while the matter was sorted out. It’s right there in the PowerPoint: “Declare National Emergency.” That would have been Authoritarianism 101.
And something like 80-90 percent of Republicans would have supported it and made excuses for it. If you doubt me, go check who’s leading in the 2024 primary polls by a country mile.
It’s interesting that the PowerPoint was part of an email that Meadows himself turned over to the January 6 committee. He stopped cooperating with them in the past few days but he’d been cooperating before that, and apparently had been useful:
The messages on Meadows’ personal cell phone and email account, which were voluntarily handed over without any claim of executive privilege, relate to “what Donald Trump was doing and not doing during the riot,” the source added.
These communications offer a window into what people were texting to Meadows on January 6, what he was telling them about Trump in real time, and what the former President was doing for those hours while the Capitol was under attack and rioters were chanting “Hang Mike Pence,” according to the source…
The source familiar with the communications tells CNN the texts may not reflect well on the former president.
Ali Alexander, who organized the January 6 rally, is also cooperating:
Jan. 6th organizer Ali Alexander’s lawyer snaps at him over responding to a press question. pic.twitter.com/srJJ4shlxu
— Zachary Petrizzo (@ZTPetrizzo) December 9, 2021
In fact, according to Liz Cheney, lots of people are cooperating:
We have received exceptionally interesting and important documents from a number of witnesses, including Mark Meadows. He has turned over many texts from his private cell phone from January 6th. (2/4)
— Rep. Liz Cheney (@RepLizCheney) December 9, 2021
Do not be misled: President Trump is trying to hide what happened on January 6th and to delay and obstruct. We will not let that happen.
The truth will come out. (4/4)
— Rep. Liz Cheney (@RepLizCheney) December 9, 2021
She posted that earlier, before the D.C. Circuit ruling. In a sane world, damning evidence that Trump cheered on the attack from the White House — that he was “delighted” by it — would end his influence within the Republican Party and finish him off for 2024. (Actually, in a sane world he would have been impeached and removed and we wouldn’t need a January 6 committee.) As it is, I wonder what political damage, if any, the committee’s report will do to him. Maybe it’ll convince some swing voters not to give him a second chance if he’s the nominee again. But most voters don’t dwell on minor trivia like whether a candidate might be willing to stage a coup and end democracy in the U.S. when they make up their minds how to vote. They focus on bottom-line matters, like gas prices.
Trump should run on that. “President for life, low gas prices forever.”
Exit quotation from Axios, reminding us that Trump seems to have developed a full-blown psychological illness over having lost at the polls: “Sources who have spent time with Trump at his Florida estate Mar-a-Lago say it’s impossible to carry out an extended conversation with him that isn’t interrupted by his fixations on the 2020 election… ‘We try to get him onto other topics, but you always get dragged back,’ said an adviser to the former president.”