The Supreme Court split Trump on the Jan. 6 attack

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On Wednesday, the Supreme Court rejected an attempt by former President Donald Trump to undermine the investigation into the January 6, 2021 attack on the U.S. Capitol.

In a single-paragraph injunction, the Court effectively ensured that the U.S. House committee investigating the unrest in the Capitol would obtain documents that could reveal the extent of Trump’s role in those events. It was a departure from the Courts ’conservative approach to Trump when he was president, when it effectively thwarted efforts by congressional committees to obtain Trump’s financial records while Trump was still in office.

The Court did not disclose how each magistrate voted, but Justice Clarence Thomas openly expressed his disapproval.

Trump v. Thompson is involved in hundreds of pages of records from the Trump White House, currently held by the National Archives. The committee is looking for a wide range of White House records about the Capitol attack, Trumps activities surrounding Jan. 6, 2021, and other documents that could shed light on Trump’s efforts to hinder the peaceful transfer of power to President Joe Biden. The former president says these documents cannot be given to the committee because they are protected from executive -privileged congressional investigators.

There is executive privilege to stimulate honest conversations between a president and their advisers, in the theory that advisers would be reluctant to give unpopular-but-important advice to a president if that advice will soon be public in a courtroom or a floor of the Senate committee room. The Supreme Court declared in 1977 that this privilege remained in the tenure of individual Presidents, but the privilege was weaker for former presidents than for an incumbent.

Trump’s attempt to block Democrats from questioning congress on his role in the events of Jan. 6 raises serious and substantial concerns, the new Supreme Court order Trump claims. The Court noted that the questions posed by the case, about when a former President could take a court order preventing the disclosure of privileged records from his tenure in office, in the face of an incumbent’s determination that President to relinquish the privilege, has not yet been done. But the Court ultimately ruled that those questions could wait for another day indicating, in the process, that Trump’s attempt to assert privilege here was particularly weak.

A lower court, the magistrates note, ruled that President Trump’s claims would fail even if he was in office. Thus, Trump’s status as a former President is necessarily no different from the court’s decision.

Justice Brett Kavanaugh wrote a separate opinion accompanied by no other justice. It complains that the lower court suggested that a former President may not have successfully used the President’s communication privilege for communications that took place during his Presidency. Kavanaugh spent several pages disagreeing with this claim, and, in agreement with Kavanaugh’s concerns, the Court’s order essentially invalidates those parts of the lower court’s opinion.

But relatively small changes to the lower court’s decision don’t change that this case is a disadvantage for Trump. This is a loss that is entirely consistent with existing law to the point where it would be alarming if the Court intervened on Trump’s behalf. But still a loss.

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