The Volokh Conspiracy
Mostly law professors | Sometimes contrarian | Often libertarian | Always independent
Last year, the January 6 committee requested certain documents from the Archivist of the United States. Specifically, the committee sought former-President Trump's records concerning January 6, other records concerning Trump's claims about election fraud, and other documents. Trump asserted executive privilege over some of the documents. However, President Biden declined to assert executive privilege of those documents. Trump sued Rep. Bennie Thompson, chairman of the January 6 committee. The District Court ruled against the former President. And in December, the D.C. Circuit affirmed. I blogged about the case here.
Here is how Judge Millett's panel opinion describes the case:
The central question in this case is whether, despite the exceptional and imperative circumstances underlying the Committee's request and President Biden's decision, a federal court can, at the former President's behest, override President Biden's decision not to invoke privilege and prevent his release to Congress of documents in his possession that he deems to be needed for a critical legislative inquiry.
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. Both Branches agree that there is a unique legislative need for these documents and that they are directly relevant to the Committee's inquiry into an attack on the Legislative Branch and its constitutional role in the peaceful transfer of power.
Got it? The "central question" concerns the relationship between Biden, the current President, and Trump, the former President.
On December 23, 2021, Trump sought an emergency stay of the mandate, and an injunction pending review. Nearly a month later, the Supreme Court acted on the application. And the result is not what I expected. Rather than a summary denial, the Court included a single paragraph of reasoning. It states that the separation of powers questions decided by the D.C. Circuit "are unprecedented and raise serious and substantial concerns."
The application for stay of mandate and injunction pending review presented to THE CHIEF JUSTICE and by him referred to the Court is denied. 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.
But then, the Court pivots! The D.C. Circuit erred by deciding these issues at all.
The Court of Appeals, however, had no occasion to decide these questions because it analyzed and rejected PresidentTrump's privilege claims "under any of the tests [he] advocated," Trump v. Thompson, 20 F. 4th 10, 33 (CADC 2021),without regard to his status as a former President, id., at 40–46.
I'm sure Judge Millett and her colleagues are pleased to know portions of their opinion were inappropriate, and were completely unnecessary. At this point, I would expect the Court to simply GVR--grant the application, vacate those six pages, and remand the case for further proceedings. But no. The Roberts Court doesn't do simple things. Instead, it deems those six pages "nonbinding dicta"!
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. Id., at 33 (noting no "need [to] conclusively resolve whether and to what extent a court," at a former President's behest, may "second guess the sitting President's" decision to release privileged documents); see also id., at 17 n. 2. Any discussion of the Court of Appeals concerning President Trump's status as a former President must therefore be regarded as nonbinding dicta.
Huh? How can the Supreme Court modify a lower-court opinion without granting the application, at least in part? The Supreme Court does not have a roving jurisdiction to simply correct lower courts in the absence of an actual appeal. I welcome FedCourts experts to opine on this point. Has there ever been a case where the Supreme Court modified a lower court decision without granting an application? Then again, the Supreme Court pretends to overrule Korematsu in the court of history, whatever that is.
Ultimately, this entire opinion is a legal fiction--call it dicta, if you will! Indeed, remember Chief Justice Roberts tried to pawn off Roe's viability line as dicta? The Chief is a smart lawyer. This dicta nonsense is insulting to our intelligence. But that's where we are. Once again, the Court punches a ticket good for one ride: Trump loses, but no adverse precedent is set that could hamstring some future, more worthwhile, president.
One of my favorite Scaliaisms of all time is "dictumizer." He used this barb in Schuette v. BAMN to criticize supporters of Footnote 4 of Carolene Products. After all, that famous footnote only garnered four-votes on a seven-member Court. Yet, generations of judge and lawyers have treated this dictum as binding law. It ain't. (Five years after his passing, Justice Scalia continues to inspire us all.)
After reading the Supreme Court's order in Trump v. Thompson, the only word that came to mind was "dictumizer." Indeed, Stern and Gressman should add a new acronym to the lexicon, GDR: grant, dictumize, and retreat.
Justice Thomas was the only noted dissenter. Justice Gorsuch did not note his dissent, but I am not surprised. Gorsuch joined Justice Kavanaugh's concurrence in Trump v. Vance, which was an attempt to separate himself from Trump, without curtailing the executive in the future. Alito may have just exercised his right to remain silent.
Speaking of Justice Kavanaugh, he wrote a three-page statement. Kavanaugh explained that the D.C. Circuit's analysis is not only dicta, but is not "binding precedent"! Another dicta!
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.
You hear that D.C. Circuit! Don't even think of citing portions of the opinion as precedent. And even though it was dicta, and not precedential, Justice Kavanaugh still feels compelled to respond.
Moreover, I respectfully disagree with the Court of Appeals on that point. 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.
Kavanaugh has a bit of a vested interest here. He served as President Bush's White House Associate Counsel, and later as Staff Secretary. Every piece of paper that reached the President's desk passed under Kavanaugh's eye. There were countless communications between the President and Kavanaugh that have never seen the light of day. Indeed, during Kavanaugh's first confirmation hearing, the Democrats fought to reveal those documents. Remember Senator Booker's Spartacus moment?! When Kavanaugh expresses this concern, he speaks from personal experience:
If Presidents and their advisers thought that the privilege's protections would terminate at the end of thePresidency and that their privileged communications could be disclosed when the President left office (or were subject to the absolute control of a subsequent President who could be a political opponent of a former President), the consequences for the Presidency would be severe. Without sufficient assurances of continuing confidentiality, [emphasis in original] Presidents and their advisers would be chilled from engaging in the full and frank deliberations upon which effective discharge of the President's duties depends.
But at the end, Kavanaugh acknowledges that Trump loses anyway, so no reason to intervene, other than to vacate six pages of the D.C. Circuit's opinion.
This order may be the most unusual shadow docket order yet.