IN A move that many Filipinos may see as surprising, the United States Supreme Court rejected Donald Trump’s appeal that his official papers be protected from the prying eyes of the US House of Representatives, on the basis of “executive privilege.”
Executive Privilege is a legal principle that generally shields the papers, notes, even taped conversations of Presidents from the prying eyes of everyone else, with some exceptions. It is granted to the President so that anyone and everyone dealing with him on matters of state are free to say what they wish to say without any legal ramifications, thus allowing for a more robust discussion of matters at hand.
But it is not absolute, as Richard Nixon found out in 1974 when he was battling the prospect of impeachment before a House of Representatives that was in fact controlled by his Republican Party. The House committee investigating the break-in at the headquarters of the Democratic Party in the Watergate complex of Washington DC had issued subpoenas for documents as well as tapes of conversations in the Oval Office, which Nixon refused to comply with, citing “executive privilege.” The issue had to go to the courts.
Eventually, the US Supreme Court rejected Nixon’s defense and decreed that he had to comply. Instead of doing so, Nixon resigned the office in August of that year, becoming the first and only US president in history to do so.
This time, the House is controlled by the Democrats, the party of incumbent President Joe Biden. The House is investigating the January 6, 2021 assault on the US Congress building (the Capitol) by Trump supporters who were out to prevent the proclamation of Biden as the winner of the November 2020 elections. It was the bloodiest and most serious attack on the Capitol since, I think, August of 1814, when the British burned not only the Capitol but the White House as well.
Of course, the British were an invading, foreign force. The assaulting “force” on January 6 were American citizens who had voted for Trump, who believed he had won, and who had been encouraged by Trump as well to “be brave” and to win back the country that was being stolen from them. And winning back the country meant stopping the proclamation and even “hanging” Trump’s own Vice President, Mike Pence, whose job it was to declare Biden the president-elect.
“Stop the Steal” was the name of the rally held in front of the White House that day.
So it was in many ways not surprising that an inquiry would be launched about the January 6 assault, made to look partisan (or even more so) by the refusal of almost all House Republicans from participating. In keeping with the political and legal processes in the US, when the House could not by its own powers get a party to comply with its orders, it turns to the courts. And so whenever a Trump associate or Cabinet member would be subpoenaed to appear and the latter would refuse, the House committee would turn to a court to issue an order.
Which is what it did with Donald Trump’s papers, because Trump, not surprisingly, refused to comply.
First, in November of 2021, it was a Federal District Court judge who ordered Trump to comply with the subpoena. Reports noted that she was “a Democratic appointee.” Her ruling not surprisingly was appealed to a federal appeals court, which decided on January 6 by a vote of 3-0 to order Trump to comply. Again, reports noted that the three judges on the panel of the US Court of Appeals for the District of Columbia were all “Democratic appointees.”
Naturally, the ruling was again appealed, this time to the US Supreme Court.
SCOTUS, as the highest US court is fondly called, consists of nine justices who have a lifetime tenure. As of today, six of the nine are conservative justices who were appointed by Republican presidents — and three of those six are Trump appointees. The remaining three make up the so-called “liberal wing” and are appointees of past Democratic presidents. From the looks of it, especially to a Filipino, Trump wins, yes?
It was in some respects democracy that won the other day. SCOTUS refused to overturn the decision of the appellate court that had rejected the “executive privilege” claim made by Trump, thus clearing the way for the House of Representatives to obtain his papers from the National Archives. It was a nearly unanimous decision with only one conservative, Justice Clarence Thomas, issuing a dissent. And for the Court the matter was simple: “executive privilege” is not absolute and can only be claimed by the incumbent President.
Biden waived the privilege over the Trump documents, and that was that.
Ideological position or, worse, partisan feelings, had no part in the very clear stand taken by the highest court.
Most important, it is very clear that to a SCOTUS there is no such thing as “utang na loob.”
How often can this be said in the Philippines? But this is not the first time that justices have ruled against the interests of the Presidents who appointed them, even Presidents still in office, and it is what helps keep the enemies of democracy at bay in the United States. And these enemies abound, not only foreign but even local; in fact, these are trying times for democracy in America because it faces assaults from outside as well as from within — including assaults on the right to vote, the fundamental element in any democracy especially.
For SCOTUS, it is democracy first.
Sanaol.
