DC Court of Appeals Sends Trump an Ominous Sign in Executive Privilege Claim


Donald Trump’s need for secrecy, his reliance upon a sweeping claim of executive privilege (extending beyond his own term), all to withhold documents from the House Select Committee, was delivered a blow yesterday when the appellate court delivered an ominous sign to “Camp Trump.”

The DC Court of Appeals informed the parties that it wants the parties’ briefs to include a section on whether the court even has jurisdiction to hear the case. According to Williams, the fact the court brought the issue up itself is important, “[C]ourts are typically protective of their jurisdictions and the fact that [the DC Court of Appeals] raised this question on its own, meaning that it was not suggested by the lawyers in the case” is important, as it shows that they have concerns that go even beyond those raised by the committee’s lawyers. 

Williams is certainly right as a general matter, but it should also be noted that federal courts are loathed to hear almost any case involving privileges between Congress and the executive branch. Obviously, the fact that the court brought the issue up itself means that the judges might believe that they don’t even have the power to grant the order that Trump seeks.

Of course, Trump will appeal any ruling against him to the SCOTUS. But if he has been easily defeated at the district court and (possibly) at the appellate court level, it is possible that the SCOTUS would decline to even hear Trump’s case. Even though the SCOTUS has three “MAGA” justices, they – too, likely don’t want to have to settle fights concerning executive privilege.

Regardless, without question, the DC Court of Appeals’ concerns should worry team Trump and may ensure that the committee gets access to the documents it seeks that much sooner.

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