enter into it. that was one of the biggest flaws in trump s administration was their willingness to subvert doj s purposes for political gain. that s why merrick garland to, you know, so many people are disappointed in him. but that s why he has made such a rigid practice of not caving into what s political. so, look, there s absolutely nothing wrong with congress referring a case over to doj. doj makes referrals to congress every year saying, congress, we wish you would pass some new laws for us. it s a practice that doj has engaged in for many years. it s not doj s job to make law, but they certainly give advice to congress when they see something they d like congress to do. here congress is returning the favor. there s nothing improper and no reason that the supreme court should hear this case or do anything other than send these papers on a speedy path from the national archives over to the congressional committee.
contributors and co-hosts of the podcast #sisters in law. great to see you both. barbara, i m going to start with you. will the supreme court even take up the appeal case by the trump legal team? i think it s very unlikely, jonathan. i think that the decision that the court of appeals made, which affirmed the trial court in this case, really got it right and had a very lengthy and well-reasoned opinion. and essentially what they said is it is the incumbent president other than joe biden who gets to decide whether there is privilege that should be asserted because executive privilege is a qualified one. and while a former president can give his input and his advice, ultimately the decision belongs to the current president. i think that s a very sound decision. it s based on supreme court precedent, and so it seems to me very unlikely that they ll take it up. as congress has requested, if the court does decide to take it up, at least do it quickly. joyce, do you see anything more t
way evishiates congress legitimate purpose here. barbara, by honing on the criminal referral in the court of public opinion is the trump team making the case so partisan that the committee will drop it or at least they hope? well, i think they are trying this case not only in the courts but also in the court of public opinion, so it gives talking points to their advocates and their supporters to say, see, this is all just a political crusade to take us down. this is not about legislation. this is about gotcha of donald trump so that he can be referred for a criminal case, and i don t think that s going to resonate whatsoever with the court. courts have repeatedly held that congress may investigate anything over which they may legislate. and as the court of appeals judge who wrote the opinion in the case, she said, well it s hard to imagine anything more in congress wheel house than an attack on its own house.
so she s very clear this is certainly within the scope of its investigation. i will agree with one thing that was said in trump s legal pleadings and that is we all ought to read the washington post. you know what? i agree with you on that. but, joyce, in all seriousness, what about the doj? what about the department of justice? are they completely immune to the politics on something like this as they re meant to be? you know, doj s stock and trade is their immunity to the politics. sure people try to influence the justice department. and typically once you re inside of that building on pennsylvania avenue you re pretty much tone-deaf to what s going on the outside. congress can certainly make a referral if doj think it s merited. they ll pursue it. if they don t, they ll simply ignore it. because as a prosecutor that s your job. your job is to follow the law and to follow the evidence. and the politics simply doesn t
trump s lawyers arguing that the committee doesn t have the authority to seek a criminal referral? like so many other times, jonathan, we re seeing trump s lawyers yet again arguing to an audience of one. and i m sure he s very pleased with their pleadings, but like barb i don t think the supreme court will see much to this. you know, it has to be the case that congress has the ability to investigate january 6th. if not, democracy might just as well pack it up and call it a day. if congress can t legitimately look into to an insurrection and determine how to prevent a repeat what we all saw take place at the earliest part of this year. so two lower courts have determined there was legitimate purpose here. there s no reason congress can t make a referral if evidence comes into its possession it believes doj should see. there s no reason that in any