As near all know, Trump is in the midst of resisting a congressional subpoena for documents pertaining to the January 6th riot and those events leading up to it, documents that may or may not include some very damning information. We cannot know what the documents show, we do know that Trump doesn’t want the committee to see those documents.
So he did what he always does. He sued and claimed executive privilege. He lost, at least in the district court. He appealed, which is not a surprise, but the appellate court did have a surprise for the Trump legal team.
According to Pete Williams of NBC [1]:
Late Tuesday, the appeals court ordered the lawyers in the case to be prepared to address the jurisdiction issue. The fact that the court is wondering about its own authority to take up the case is telling: Courts are typically protective of their jurisdictions.
The court raised the question on its own, meaning it was not suggested by the lawyers in the case. It asked: “Does the provision in the Presidential Records Act providing that the Archivist’s ‘determination whether access to a Presidential record … shall be restricted … shall not be subject to judicial review, except as provided in subsection (e) of this section’ … implicate this court’s or the district court’s jurisdiction in this case?”
Now, courts order parties to brief specific issues all the time when the court believes that both parties have overlooked a key issue. In and of itself, it’s not a bad sign. But when the court asks an appellant to brief “Should you even be here at all?” (paraphrased), that cannot be taken as a positive development.
Courts are very reluctant to get involved in feuds between Congress and the Executive branch over privilege, and the question, “Do we even have jurisdiction here” can be translated just as easily into, “Are you even allowed to ask a court to do what you’re asking?”
As said, it is not a loss, but it is not a positive sign for the Trump team.
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[email protected] and on Substack: Much Ado About Everything [2]