Trump v. Thompson

Trump v. Thompson

Opinion

 [**579]  [*680]   Application for stay of mandate and injunction pending review presented to The Chief Justice and by him referred to the Court denied. The questions whether and in what circumstances a former President may obtain a court order preventing disclosure of privileged records from his tenure in office, in the face of a determination by the incumbent President to waive the privilege, are unprecedented and raise serious and substantial concerns. The Court of Appeals, however, had no occasion to decide these questions because it analyzed and rejected President Trump’s privilege claims “under any of the tests [he] advocated,” Trump v. Thompson, 20 F. 4th 10, 33 (CADC 2021), without regard to his status as a former President, id., at 40-46. Because the Court of Appeals concluded that President Trump’s claims would have failed even if he were the incumbent, his status as a former President necessarily made no difference to the court’s decision. Id., at 33 (noting no “need [to] conclusively resolve whether and to what extent a court,” at a former President’s behest, may “second guess the sitting President’s” [***2]  decision to release privileged documents); see also id., at 17 n. 2. Any discussion of the Court of Appeals concerning President Trump’s status as a former President must therefore be regarded as nonbinding dicta.

 [**580]  Justice Thomas would grant the application.

Concur by: Kavanaugh

Concur

Statement of Justice Kavanaugh respecting denial of application.

The Court of Appeals suggested that a former President may not successfully invoke the Presidential communications privilege for communications that occurred during his Presidency, at least if the current President does not support the privilege claim. As this Court’s order today makes clear, those portions of the Court of Appeals’ opinion were dicta and should not be considered binding precedent going forward.

Moreover, I respectfully disagree with the Court of Appeals on that point. A former President must be able to successfully invoke the Presidential communications privilege for communications that occurred during his Presidency, even if the current President does not support the privilege claim. Concluding otherwise would eviscerate the executive privilege for Presidential communications.

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