If I'm reading it right—and I'm not sure I am, as it's confusing as hell—tonight's order in Trump v. Thompson isn't just a win for the Jan. 6 committee in this case, but has big potential implications that should have Trump and his supporters worried.
supremecourt.gov/opinions/21pdf…
supremecourt.gov/opinions/21pdf…
The Court writes that, "[b]ecause the [D.C. Circuit] concluded that [Trump]’s claims would have failed even if he were the incumbent, his status as a former President...made no difference" and its discussion of that issue is dicta.
But the rest of the D.C. Cir. opinion controls.
But the rest of the D.C. Cir. opinion controls.
What exactly is left is hard to parse, as a lot of the D.C. Circuit's opinion intermingles issues that seem to hinge on Trump's status. But the key language in the section pointed to by the Court (pp. 40-46) appears to be this: 
I think this suggests that at least eight justices agree that the "historic commitment to the rule of law" and other equities were so threatened by the events of Jan. 6th that they outweigh Trump's claims of executive privilege—and would do so *even if he were still president*.
Notably, this doesn't hinge on Biden's policy judgment, as deferring there would implicate the incumbent versus former president issues being avoided.
Instead, this is the Court's own judgment, which would appear to prevail even if an incumbent president argued otherwise.
Instead, this is the Court's own judgment, which would appear to prevail even if an incumbent president argued otherwise.
What it suggests, however, is that future presidents probably can't rely on executive privilege to protect information relating to potentially major unlawful conduct, like interfering with the transition of power.
By today's standards, that's not an insignificant caveat.
By today's standards, that's not an insignificant caveat.
I'm admittedly surprised, as I would have guessed that a ruling on the substantive scope of executive privilege raised far bigger constitutional questions than a former president's ability to assert privilege, and would thus be avoided in favor of the latter.
Obviously, I had that flipped.
Some justices, like Kavanaugh, are clearly worried about about preventing former presidents from invoking executive privilege in some future cases and found it easier to agree on how the specific equities implicated by Jan. 6th should be weighed.
Some justices, like Kavanaugh, are clearly worried about about preventing former presidents from invoking executive privilege in some future cases and found it easier to agree on how the specific equities implicated by Jan. 6th should be weighed.
All told, this seems to bode quite badly for Trump associates making their own arguments relating to executive privilege or the committee's lacking authority—and potentially other arguments they might bring out.
After all, eight justices—including all three Trump appointees—seem to be suggesting that Jan. 6th was enough of a threat to the rule of law to warrant the sorts of responses we haven't seen since Watergate, even over presidential objections.
For Trump et al., that's bad news.
For Trump et al., that's bad news.
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