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Trump White House records can be released in Jan. 6 probe pending Supreme Court review, appeals court rules

Former president seeks to keep White House papers from congressional committee investigating Capitol riot in first legal case testing whether a sitting president can waive a predecessor’s claim of executive privilege

Former president Donald Trump has argued that records from his time in the White House should be blocked from Congress. (Ben Gray/AP)

A federal appeals court on Thursday resoundingly rejected former president Donald Trump’s bid to keep his White House documents secret from a congressional committee investigating the Jan. 6 attack on the Capitol, setting up an emergency Supreme Court review.

A three-judge panel of the U.S. Court of Appeals for the D.C. Circuit unanimously upheld a lower court’s opinion, which said that in a dispute between a current and past president over whether to release White House records, the sitting president must prevail.

In blunt and at times blistering language, Judges Patricia A. Millett, Robert L. Wilkins and Ketanji Brown Jackson denied Trump’s request for a preliminary injunction blocking the National Archives and Records Administration from releasing the first roughly 800 pages of disputed Trump papers after President Biden declined to assert executive privilege as requested by his predecessor, setting up the first of its kind constitutional controversy.

“Lives were lost, blood was shed; portions of the Capitol building were badly damaged; and the lives of members of the House and Senate, as well as aides, staffers, and others who were working in the building, were endangered,” the court said of the riots that stalled Congress’s confirmation of the 2020 election results, adding, “There is a direct linkage between the former President and the events of the day.”

At the same time, the 68-page opinion continued, “Former President Trump has given this court no legal reason to cast aside President Biden’s assessment of the Executive Branch interests at stake, or to create a separation of powers conflict that the Political Branches have avoided.”

Writing for the court, Millett concluded, “Benjamin Franklin said, at the founding, that we have ‘[a] Republic — if [we] can keep it.’ The events of January 6th exposed the fragility of those democratic institutions and traditions that we had perhaps come to take for granted. In response, the President of the United States and Congress have each made the judgment that access to this subset of presidential communication records is necessary to address a matter of great constitutional moment for the Republic.”

Trump spokeswoman Liz Harrington said the former president would ask the Supreme Court to intervene. The D.C. Circuit gave his lawyers 14 days to do so, which means the records will not immediately be turned over to Congress.

“Regardless of today’s decision by the appeals court, this case was always destined for the Supreme Court,” Harrington posted on Twitter. “President Trump’s duty to defend the Constitution and the Office of the Presidency continues, and he will keep fighting for every American and every future Administration.”

The House select committee investigating the attempted insurrection at the Capitol on Jan. 6 faces an uphill battle with former Trump administration officials. (Video: Blair Guild/The Washington Post)

Read the opinion here

The House Investigative Committee in August requested Trump’s official communications and activities leading up to lawmakers’ confirmation of the electoral college results on the day that a 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 Biden agreed to the release of the material.

Trump seeking to block hundreds of pages of documents from Jan. 6 committee, court filing shows

Trump’s attorneys asked the appeals court to block release of the documents and to reverse a Nov. 9 lower-court ruling against him by U.S. District Judge Tanya S. Chutkan. Trump 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 Rep. Bennie G. Thompson (D-Miss.), the chairman of the House select committee investigating the Jan. 6 attack, and National Archivist David Ferriero.

Trump White House records can be turned over to House Jan. 6 investigative committee, judge rules

In expedited oral arguments Nov. 30, Millett 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.

Appeals court scrutinizes Trump bid to keep Jan. 6 White House records secret from Congress

But she also expressed concern that future presidents could be hobbled if the confidentiality of their deliberations were to expire the minute they leave office. Facing a first-of-its-kind dispute between Trump and Biden, she and the other judges struggled to come up with what rules to apply.

“Whatever the incumbent president says, goes?” Judge Wilkins asked the lawyer for House Speaker Nancy Pelosi (D-Calif.). “We don’t just flip a coin.”

In rejecting Trump’s request Thursday, the court acknowledged the need for confidentiality when it comes to presidential communications and said, “We do not come to that conclusion lightly.”

But the judges, all appointed by Democratic presidents, said national interests override Trump’s assertion of executive privilege in this instance. Trump is asking the court to invalidate the judgments of both the president and Congress, and “to delay the Committee’s work, and derail the negotiations and accommodations that the Political Branches have made,” the opinion said.

“A former President must meet the same legal standards for obtaining preliminary injunctive relief as everyone else,” the opinion states. “And former President Trump has failed that task.”

The opinion credits Biden’s rationale for not asserting executive privilege, saying that “the scales tilt even more firmly against the contrary views of the former president.” Courts should not “second guess the expert judgment of the sitting president about the current needs of the Executive Branch and the best interests of the United States on matters of such gravity and so squarely within the president’s” discretion.

Millett wrote that Trump provided no basis for judges to override Biden’s “judgment and the agreement and accommodations worked out between the Political Branches over these documents.” Both the White House and Congress agreed there was “a unique legislative need” for the records that they were directly relevant to an attack on Congress and “its constitutional role in the peaceful transfer of power.”

The court cited several reasons for why Trump’s novel legal claims were unlikely to prevail. The opinion said Biden gave “carefully reasoned and cabined determination” that secrecy was not in the national interest and Congress had a “uniquely vital interest” in studying the Jan. 6 attack. The documents are relevant and would be unavailable elsewhere, the court said.

“Former President Trump likewise has failed to establish irreparable harm, and the balance of interests and equities weigh decisively in favor of disclosure,” the judges wrote.

Information from within the White House, the opinion states, is also critical to understanding “what intelligence failures led the government to be underprepared for such a violent attack, and what can be done to expedite the mobilization of law enforcement forces in a crisis on Capitol Hill going forward.”