Good column from Jennifer Rubin

Jennifer Rubin salutes the DC Appellate panel, gives some pertinent excerpts from their recent decision denying Trump’s “privilege” appeal, and lays out how the decision should be used in the ongoing battle to preserve our strained democracy in this largely lawless power grab by American zealots, backed by an army of angry white Christians.

Opinion: Distinguished persons of the week: The D.C. Circuit shuts down Trump

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By Jennifer Rubin Columnist |Yesterday at 7:45 a.m. EST

The Supreme Court may have lost its luster due to its blatant partisanship, but lower federal court judges are consistently upholding the Constitution and not allowing Jan. 6 to go down the memory hole.

The three-judge U.S. Court of Appeals for the D.C. Circuit on Thursday issued a unanimous opinion shutting down former president Donald Trump’s ludicrous claim that he can assert executive privilege over White House documents in contravention of the current president’s waiver of privilege claims.

“On the record before us, former President Trump has provided no basis for this court to override President Biden’s judgment and the agreement and accommodations worked out between the Political Branches over these documents,” the court held. “Both Branches agree that there is a unique legislative need for these documents and that they are directly relevant to the [House select committee’s] inquiry into an attack on the Legislative Branch and its constitutional role in the peaceful transfer of power.”Advertisement

Rarely is the court’s recitation of the facts as powerful as this one, given the MAGA crowd’s ongoing gaslighting:

On November 3, 2020, Americans elected Joe Biden as President, giving him 306 electoral college votes. Then President Trump, though, refused to concede, claiming that the election was “rigged” and characterized by “tremendous voter fraud and irregularities[.]” … Over the next several weeks, President Trump and his allies filed a series of lawsuits challenging the results of the election. The courts rejected every one of the substantive claims of voter fraud that was raised. … The events of January 6, 2021 marked the most significant assault on the Capitol since the War of 1812. The building was desecrated, blood was shed, and several individuals lost their lives.

In case anyone had forgotten, the court offers a reminder that any claim of a stolen election was and remains a lie. This was not a “normal tourist visit.”

The court reiterated that the current president waived executive privilege, writing, “In this case, President Biden, as the head of the executive branch, has specifically found that Congress has demonstrated a compelling need for these very documents and that disclosure is in the best interests of the Nation. Congress, which has engaged in a course of negotiation and accommodation with the President over these documents, agrees.”

The court then reaffirmed that the current president holds the privilege:

“To start, as the incumbent, President Biden is the principal holder and keeper of executive privilege, and he speaks authoritatively for the interests of the executive branch,” the court held. “Under our Constitution, we have one President at a time.”

The court also emphasized the legitimacy of Congress’s inquiry:

The very essence of the Article I power is legislating, and so there would seem to be few, if any, more imperative interests squarely within Congress’s wheelhouse than ensuring the safe and uninterrupted conduct of its constitutionally assigned business. Here, the House of Representatives is investigating the single most deadly attack on the Capitol by domestic forces in the history of the United States. Lives were lost; blood was shed; portions of the Capitol building were badly damaged; and the lives of members of the House and Senate, as well as aides, staffers, and others who were working in the building, were endangered. They were forced to flee, preventing the legislators from completing their constitutional duties until the next day.

Proceeding through the test the Supreme Court laid out in Trump v. Mazars, in which the high court ruled against Trump’s bogus claim of absolute privilege while he was in office, the appeals court concluded, “At the end of the day, the Mazars test is of no help to former President Trump’s effort to demonstrate a likelihood of success in invalidating the January 6 Committee’s request.”

With some rhetorical flourish, the court wrapped up with this:

Benjamin Franklin said, at the founding, that we have “[a] Republic”—“if [we] can keep it.” The events of January 6 exposed the fragility of those democratic institutions and traditions that we had perhaps come to take for granted. In response, the President of the United States and Congress have each made the judgment that access to this subset of presidential communication records is necessary to address a matter of great constitutional moment for the Republic. Former President Trump has given this court no legal reason to cast aside President Biden’s assessment of the executive branch interests at stake, or to create a separation of powers conflict that the Political Branches have avoided.

The court’s opinion is so tightly reasoned that it is hard to imagine even this Supreme Court riding to Trump’s rescue. (Indeed, it did not do so in Mazars.) The appeals court performed three essential functions in rendering its decision.

First, it demolished the “big lie” of a stolen election and restated the seriousness of the violent insurrection that disgruntled Republicans launched. Every member of Congress should read the opinion and prepare to explain how, if at all, the court’s recitation of facts goes astray. Lacking any facts to refute the court, Republicans’ refusal to accept the 2020 electoral votes and their dismissal of the insurrection should be seen for what they are: Partisan bad faith in violation of their oaths.

Second, it obliterated the basis for the assertion of executive privilege from Trump cronies Stephen K. Bannon and Mark Meadows. They are looking at conviction for contempt of Congress, as will other witnesses attempting to cover for Trump. (Rep. Liz Cheney of Wyoming, one of two Republicans on the House select committee, explained in a series of tweets that these stunts have not slowed the committee, which “has already met with nearly 300 witnesses … [and is] conducting multiple depositions and interviews every week.”)

Third, in so thoroughly shredding Trump’s bogus legal arguments, the court made clear that Trump’s entire legal strategy is to stall and run out the clock. The facts and the law are not on his side, and the court has refused to help him delay the process by reviewing every document. In this case, the wheels of justice turn swiftly.

For its clear-eyed opinion and reaffirmation of the rule of law, we can say to the D.C. panel, well done. © 1996-2021 The Washington Post

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