The Washington PostDemocracy Dies in Darkness

Opinion Distinguished person of the week: Trump is still not a king

Columnist|
November 14, 2021 at 7:45 a.m. EST
President Donald Trump acknowledges a crowd of supporters at a rally on the Ellipse on Jan. 6. (Jacquelyn Martin/AP)

U.S. District Judge Tanya S. Chutkan issued a 39-page opinion on Tuesday rejecting former president Donald Trump’s attempt to block the Jan. 6 House select committee’s demand for hundreds of documents relating to the violent insurrection that Trump incited.

Chutkan’s factual recounting was a helpful reminder that Trump deliberately unleashed his supporters in an effort to overturn the election:

On January 6, Plaintiff spoke at the rally at the Ellipse, during which he (1) repeated claims, rejected by numerous courts, that the election was “rigged” and “stolen”; (2) urged then Vice President [Mike] Pence, who was preparing to convene Congress to tally the electoral votes, “to do the right thing” by rejecting certain states’ electors and declining to certify the election for President Joseph R. Biden; and (3) told protesters to “walk down to the Capitol” to “give them the kind of pride and boldness that they need to take back our country,” “we fight. We fight like hell. And if you don’t fight like hell, you’re not going to have a country anymore,” and “you’ll never take back our country with weakness.”

When presented with the committee’s request from the Jan. 6 committee, the chief archivist of the National Archives and Records Administration contacted the White House. As Chutkan explains, “White House Counsel notified the Archivist that President Biden would not be asserting executive privilege over the first tranche of Presidential records because doing so ‘is not in the best interests of the United States.’ ”

The remainder of the opinion essentially boils down to: Biden is president, not Trump. Trump loses. “At bottom, this is a dispute between a former and incumbent President,” Chutkan writes. “And the Supreme Court has already made clear that in such circumstances, the incumbent’s view is accorded greater weight. This principle is grounded in ‘the fact that the privilege is seen as inhering in the institution of the Presidency, and not in the President personally.’ ”

In a rebuke to Trump’s consistently inflated view of presidential power and delusion that these powers are his personally, Chutkan held, “Plaintiff does not acknowledge the deference owed to the incumbent President’s judgment. His position that he may override the express will of the executive branch appears to be premised on the notion that his executive power ‘exists in perpetuity.’ . . . But Presidents are not kings, and Plaintiff is not President.”

The House select committee investigating the Jan. 6 attack on the U.S. Capitol issued subpoenas to ten Trump administration officials on Nov. 9. (Video: Reuters)

In responding to challenges regarding the constitutionality of the National Records Act and of Congress’s right to investigate, the court found multiple legislative purposes for the document request. The most serious that Chutkan listed was enacting legislation to enforce Section 3 of the 14th Amendment, which bars anyone involved with an insurrection of rebellion from running for public office — including anyone who “gave ‘aid or comfort to the enemies thereof.’ ” That warning should remind Trump and his accessories of the legal peril they may be facing.

Chutkan also underscored reforms to prevent future coups that Congress may want — or must — address, such as “imposing structural reforms on executive branch agencies to prevent their abuse for antidemocratic ends, amending the Electoral Count Act, and reallocating resources and modifying processes for intelligence sharing by federal agencies charged with detecting, and interdicting, foreign and domestic threats to the security and integrity of our electoral processes.” Such reforms would certainly be forthcoming, were if not for Republicans’ resistance to any protection of our democracy that might prevent future abuse of power by their cult leaders.

The opinion is tightly reasoned. Moreover, it is one likely to be looked upon favorably even by a right-wing Supreme Court. In applying the test from the Supreme Court’s recent decision in Trump v. Mazars, which rebuffed Trump’s claim of absolute privilege, the judge reminds the high court that its own ruling affirmed the powers of Congress to investigate as part of its legislative functions.

Trump predictably appealed to the U.S. Court of Appeals for the D.C. Circuit, which temporarily stayed the ruling to allow an accelerated briefing and hearing schedule. The former president is likely to lose there as well.

For reminding us of Congress’s power to investigate the Jan. 6 insurrection and of Trump’s status as a lowly former president without the powers of the office, we can say well done, Judge Chutkan.