Federal judges on Tuesday questioned whether former president Donald Trump has the power to go to court to keep White House documents secret from a congressional committee investigating the Jan. 6 attack on the Capitol.
A three-judge panel of the U.S. Court of Appeals for the D.C. Circuit expressed skepticism about the role of the courts in settling disputes between a former president and the sitting president over the release of White House records.
“Who decides when it’s in the best interest of the United States to disclose presidential records? Is it the current occupant of the White House or the former?” Judge Ketanji Brown Jackson pressed Trump’s attorney.
When else in history, the judge asked, has a former president had the “final say”?
Judge Patricia A. Millett also noted that past Supreme Court decisions give more deference to the determinations of the sitting president.
“We have one president at a time under our Constitution,” Millett said.
The House investigative committee in August requested Trump’s official communications and activities leading up to lawmakers’ confirmation of the electoral college results the day a violent riot by Trump supporters — angered by his unfounded claims that the 2020 election was stolen — forced the evacuation of the Capitol.
Trump sued, demanding that hundreds of pages of his White House call and visitor logs, emails, draft speeches and notes be kept secret. He argued he had residual rights to executive privilege as former president even though President Biden agreed to the release of the material.
Trump’s attorneys are asking the appeals court to block release of the documents and to reverse a lower-court ruling against him. Attorney Justin R. Clark said that former presidents retain the right to object and that such disputes should be settled in court.
Trump filed suit on Oct. 18, naming as defendants the chairman of the House Jan. 6 committee, Rep. Bennie G. Thompson (D-Miss.), and National Archivist David Ferriero.
Attorneys for Trump accused congressional Democrats of launching the probe to intimidate and harass him and his closest advisers in an effort untethered to any “valid legislative purpose.” Trump’s defense claimed that a sitting president does not have “unfettered” power to override a White House predecessor’s assertion of executive privilege and that a finding to the contrary would have “enormous consequences . . . forever changing” the balance of power between the institution of the presidency and Congress.
“The stakes in this case are high. . . . It is naive to assume that the fallout will be limited to President Trump or the events of January 6, 2021,” Trump attorneys Jesse R. Binnall and Clark wrote.
“Every Congress will point to some unprecedented thing about ‘this President’ to justify a request for his presidential records. In these hyperpartisan times, Congress will increasingly and inevitably use this new weapon to perpetually harass its political rival,” Trump’s attorneys argued.
Trump White House records can be turned over to House Jan. 6 investigative committee, judge rules
The appeals court is reviewing the decision of U.S. District Judge Tanya S. Chutkan of D.C., who rejected Trump’s claims in a withering ruling Nov. 9, saying the material should be released.
“Presidents are not kings, and Plaintiff is not President,” Chutkan wrote, ruling that an ex-president’s residual right to withhold records from Congress after leaving office does not continue in perpetuity.
Chutkan said Trump failed to identify any personal “injury to privacy, property, or otherwise” that he would suffer from the production of records.
As for the presidency, Chutkan said that executive privilege serves the republic — by ensuring presidents receive “full and frank advice” from advisers without fear of public embarrassment — not any individual, and that the incumbent president is best positioned to evaluate and balance the long-term interests of the executive branch.
In denying Trump’s request for a preliminary injunction, the judge wrote, the former president “retains the right to assert that his records are privileged, but the incumbent President ‘is not constitutionally obliged to honor’ that assertion.”
Read the opinion here
Chutkan noted that former presidents waived executive privilege when dealing with matters of “grave national importance,” including the Watergate break-in of Democratic National Headquarters by Richard M. Nixon’s 1972 reelection campaign, the arms-for-hostages Iran-contra affair under Ronald Reagan, and the 9/11 terrorist attacks during George W. Bush’s presidency.
The D.C. Circuit blocked the imminent release of records and fast-tracked oral arguments for Tuesday.
In advance of the argument, the judges indicated in a brief order their interest in hearing from the parties about whether the court has the power to review Trump’s claims. A section of the Presidential Records Act states that the archivist’s decision about whether to turn over documents “shall not be subject to judicial review” with certain exceptions.
If the court were to reject Trump’s claims or find that it lacks jurisdiction to consider the matter, the former president could ask the Supreme Court to intervene to block release of the records.
Trump’s legal strategy tested in fight with Congress over Jan. 6 records
House General Counsel Douglas N. Letter called Trump’s claims “unprecedented and deeply flawed,” saying the ex-president is asking the courts to impede the work of Congress on a “pressing” public matter even when both the executive and legislative branches agree that the records should be disclosed.
Justice Department attorneys, representing the National Archives, argued that Trump sought to whitewash the circumstances of the Jan. 6 attack and to recast a violent threat to the peaceful transfer of power as a garden-variety political dispute, ignoring Biden’s determination that the extraordinary event required a full public accounting.
“The former president’s effort to dismiss that decision as driven by politics ignores the magnitude of the events of Jan. 6 and the overriding need for a national reckoning to ensure that nothing similar ever happens again,” Justice Department civil division appellate attorney Gerard Sinzdak wrote.
At issue is the Presidential Records Act, a law passed by Congress to ensure that a president’s official records belong to the people, not the occupant of the office, after the Supreme Court in 1977 rejected Nixon’s attempt to stop the release of White House tapes and documents from the Watergate scandal.
Trump has argued that even if any of his records were to be released, judges should conduct a document-by document review before they are made public. But attorneys for the House and the Justice Department have argued against any delay, which could run out the clock on the investigation before the 2022 midterm elections, when Republicans hope to wrest control from Democrats.
The legal fight over Trump’s documents foreshadows similar fights over the House investigation as it has issued at least 40 subpoenas, including those to former Trump chief of staff Mark Meadows and adviser Stephen K. Bannon.
The Justice Department criminally charged Bannon with contempt of Congress last month for failing to respond to the committee after the House referred his case for prosecution. Bannon’s defense has asserted that he acted on advice of counsel after Trump invoked executive privilege.
A three-judge panel of the U.S. Court of Appeals for the D.C. Circuit expressed skepticism about the role of the courts in settling disputes between a former president and the sitting president over the release of White House records.
“Who decides when it’s in the best interest of the United States to disclose presidential records? Is it the current occupant of the White House or the former?” Judge Ketanji Brown Jackson pressed Trump’s attorney.
When else in history, the judge asked, has a former president had the “final say”?
Judge Patricia A. Millett also noted that past Supreme Court decisions give more deference to the determinations of the sitting president.
“We have one president at a time under our Constitution,” Millett said.
The House investigative committee in August requested Trump’s official communications and activities leading up to lawmakers’ confirmation of the electoral college results the day a violent riot by Trump supporters — angered by his unfounded claims that the 2020 election was stolen — forced the evacuation of the Capitol.
Trump sued, demanding that hundreds of pages of his White House call and visitor logs, emails, draft speeches and notes be kept secret. He argued he had residual rights to executive privilege as former president even though President Biden agreed to the release of the material.
Trump’s attorneys are asking the appeals court to block release of the documents and to reverse a lower-court ruling against him. Attorney Justin R. Clark said that former presidents retain the right to object and that such disputes should be settled in court.
Trump filed suit on Oct. 18, naming as defendants the chairman of the House Jan. 6 committee, Rep. Bennie G. Thompson (D-Miss.), and National Archivist David Ferriero.
Attorneys for Trump accused congressional Democrats of launching the probe to intimidate and harass him and his closest advisers in an effort untethered to any “valid legislative purpose.” Trump’s defense claimed that a sitting president does not have “unfettered” power to override a White House predecessor’s assertion of executive privilege and that a finding to the contrary would have “enormous consequences . . . forever changing” the balance of power between the institution of the presidency and Congress.
“The stakes in this case are high. . . . It is naive to assume that the fallout will be limited to President Trump or the events of January 6, 2021,” Trump attorneys Jesse R. Binnall and Clark wrote.
“Every Congress will point to some unprecedented thing about ‘this President’ to justify a request for his presidential records. In these hyperpartisan times, Congress will increasingly and inevitably use this new weapon to perpetually harass its political rival,” Trump’s attorneys argued.
Trump White House records can be turned over to House Jan. 6 investigative committee, judge rules
The appeals court is reviewing the decision of U.S. District Judge Tanya S. Chutkan of D.C., who rejected Trump’s claims in a withering ruling Nov. 9, saying the material should be released.
“Presidents are not kings, and Plaintiff is not President,” Chutkan wrote, ruling that an ex-president’s residual right to withhold records from Congress after leaving office does not continue in perpetuity.
Chutkan said Trump failed to identify any personal “injury to privacy, property, or otherwise” that he would suffer from the production of records.
As for the presidency, Chutkan said that executive privilege serves the republic — by ensuring presidents receive “full and frank advice” from advisers without fear of public embarrassment — not any individual, and that the incumbent president is best positioned to evaluate and balance the long-term interests of the executive branch.
In denying Trump’s request for a preliminary injunction, the judge wrote, the former president “retains the right to assert that his records are privileged, but the incumbent President ‘is not constitutionally obliged to honor’ that assertion.”
Read the opinion here
Chutkan noted that former presidents waived executive privilege when dealing with matters of “grave national importance,” including the Watergate break-in of Democratic National Headquarters by Richard M. Nixon’s 1972 reelection campaign, the arms-for-hostages Iran-contra affair under Ronald Reagan, and the 9/11 terrorist attacks during George W. Bush’s presidency.
The D.C. Circuit blocked the imminent release of records and fast-tracked oral arguments for Tuesday.
In advance of the argument, the judges indicated in a brief order their interest in hearing from the parties about whether the court has the power to review Trump’s claims. A section of the Presidential Records Act states that the archivist’s decision about whether to turn over documents “shall not be subject to judicial review” with certain exceptions.
If the court were to reject Trump’s claims or find that it lacks jurisdiction to consider the matter, the former president could ask the Supreme Court to intervene to block release of the records.
Trump’s legal strategy tested in fight with Congress over Jan. 6 records
House General Counsel Douglas N. Letter called Trump’s claims “unprecedented and deeply flawed,” saying the ex-president is asking the courts to impede the work of Congress on a “pressing” public matter even when both the executive and legislative branches agree that the records should be disclosed.
Justice Department attorneys, representing the National Archives, argued that Trump sought to whitewash the circumstances of the Jan. 6 attack and to recast a violent threat to the peaceful transfer of power as a garden-variety political dispute, ignoring Biden’s determination that the extraordinary event required a full public accounting.
“The former president’s effort to dismiss that decision as driven by politics ignores the magnitude of the events of Jan. 6 and the overriding need for a national reckoning to ensure that nothing similar ever happens again,” Justice Department civil division appellate attorney Gerard Sinzdak wrote.
At issue is the Presidential Records Act, a law passed by Congress to ensure that a president’s official records belong to the people, not the occupant of the office, after the Supreme Court in 1977 rejected Nixon’s attempt to stop the release of White House tapes and documents from the Watergate scandal.
Trump has argued that even if any of his records were to be released, judges should conduct a document-by document review before they are made public. But attorneys for the House and the Justice Department have argued against any delay, which could run out the clock on the investigation before the 2022 midterm elections, when Republicans hope to wrest control from Democrats.
The legal fight over Trump’s documents foreshadows similar fights over the House investigation as it has issued at least 40 subpoenas, including those to former Trump chief of staff Mark Meadows and adviser Stephen K. Bannon.
The Justice Department criminally charged Bannon with contempt of Congress last month for failing to respond to the committee after the House referred his case for prosecution. Bannon’s defense has asserted that he acted on advice of counsel after Trump invoked executive privilege.
