Thread by @Teri_Kanefield

The January 6 committee filed its response to Trump's request that the Supreme Court hear his executive privilege case.

supremecourt.gov/DocketPDF/21/2…

To compare, here's what Trump filed: supremecourt.gov/DocketPDF/21/2…

(No surprise: The committee's brief is written and argued well.)

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Here is how Trump's brief presented the issue ⤵️

His argument is that the select committee's request was unconstitutional, therefore, he should have gotten a preliminary injunction. He wants the Court to decide whether the request was constitutional.

Here's the problem . . .
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To get a preliminary injunction, Trump had to show with clear evidence each of these four criteria⤵️

The likelihood of succeeding on the merits is only one element.

So far, there has not actually been a trial on the merits of whether the request was Constitutional.

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The problem for Trump is that the lower court found that he failed to show ANY of the four elements.

The committee points out that even if there are Constitutional issues, this case is not the vehicle for considering them . . .

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You're not allowed to raise new issues on appeal.

The Committee points out that in the lower courts, Trump disclaimed a freestanding challenge and stated that all of his arguments about why the committee shouldn't have the documents pertained to these particular docs.

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At the same time, Trump failed to make particularized arguments in the lower court about these particular documents.

He also failed to meet the other criteria required to get a preliminary injunction.

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My sense all along has been that even if the Court is interested in the issue Trump raises (and I doubt it is) the Court will wait for a decision on the merits and won't take an appeal from a preliminary injunction.

I'll answer this question⤵️ . . .


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The Presidential Records Act allows a former president to "be heard" in questions of executive privilege. So Trump's ability to get involved comes from this act.

Here's what's funny: In a previous brief . . .

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. . . he argued that the Presidential Records Act is unconstitutional because it gives the final say to the incumbent president, which of course is Biden.

He had a different view of the matter when he was the sitting president.

But he never worried about consistency.

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Here's what I'm stuck on: Because the Supreme Court would have to find that Trump met each of the four elements in order to overturn the ruling denying a preliminary injunction, what Trump really wants to do is to seed the idea that the committee is illegitimate.

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