A federal appeals court on Thursday blocked the imminent release of records of President Donald Trump’s White House calls and activities related to the Jan. 6 Capitol attack after a lower court found that President Biden can waive his predecessor’s claim to executive privilege.
The order came after U.S. District Judge Tanya S. Chutkan of Washington on Tuesday cleared the way for the handover of documents to a House investigative committee, ruling that an ex-president’s claim to a residual right to withhold records from Congress after leaving office does not continue in perpetuity.
“Presidents are not kings, and Plaintiff is not President,” Chutkan wrote.
In a 15-page emergency motion filed Thursday, Trump’s attorneys asked to keep the documents secret for now, and proposed that all sides brief the court next week on whether to keep them so for the weeks or months an appeal may take to decide. Trump’s legal team said the case presented serious, novel questions about whether a former president can sue a successor to withhold government records from Congress, and that the institution of the presidency would be irreparably harmed if the documents were released beginning at 6 p.m. Friday as planned.
“The disagreement between an incumbent President and his predecessor from a rival political party highlights the importance of executive privilege and the ability of Presidents and their advisers to reliably make and receive full and frank advice, without concern that communications will be publicly released to meet a political objective,” Trump attorney Jesse R. Binnall wrote.
The appeals court acted one day after Chutkan rejected a similar emergency motion, writing that the legal question was not a close call and that she would not effectively ignore her own reasoning “in denying injunctive relief in the first place to grant injunctive relief now.”
Capping days of legal drama, the appeals court rocketed consideration of the case through federal courts in Washington. While granting an injunction pending further order, the court set a schedule that signaled it would act swiftly to decide whether to withhold records while an appeal is pending. If it declines, the documents would be released, effectively mooting the case in a victory for the House.
Trump could still appeal to the Supreme Court, and a ruling keeping records secret could work to his advantage if litigation is prolonged through the November 2022 midterm elections, when Republicans hope to take the majority in what is now a Democratic-led Congress.
The scheduling order was issued by Judges Patricia Millett, Robert Wilkins and Ketanji Brown Jackson, who also will hear the case. All three were nominated to the bench by Democratic presidents, and Jackson is a recent nominee of Biden.
In her ruling Tuesday, Chutkan said Trump failed to identify any “injury to privacy, property, or otherwise that he personally will suffer” from the production of records.
As for the presidency, the judge quoted a landmark 1977 Supreme Court ruling saying that executive privilege serves the republic, not any individual. 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 on New York City and the Pentagon during George W. Bush’s presidency.
“The incumbent President — not a former president — is best positioned to evaluate the long-term interests of the executive branch and to balance the benefits of disclosure against any effect on the ability of future executive branch advisers to provide full and frank advice,” Chutkan said.
Trump’s assertion of executive privilege “is outweighed by President Biden’s decision not to uphold the privilege,” Chutkan wrote, adding, “He [Trump] retains the right to assert that his records are privileged, but the incumbent President ‘is not constitutionally obliged to honor’ that assertion.”
Attorneys for the House and the Justice Department, representing the National Archives and Records Administration, took no position on Trump’s request to hold off the release temporarily until the appeals court takes up the case. But they argued against further delay, agreeing with Chutkan’s ruling that the sitting president’s judgment and authority outweigh a predecessor’s and that Trump identified no harm to the presidency that the current president was not best positioned to weigh.
The public interest “weighs heavily” in favor of a full, prompt investigation into the violent riot by Trump’s supporters that resulted in five deaths, led to assaults on nearly 140 police officers and delayed Congress’s confirmation of the 2020 presidential election result, House General Counsel Douglas N. Letter wrote.
“Our democratic institutions and a core feature of our democracy — the peaceful transfer of power — are at stake,” Letter wrote in previous arguments. “Any delay will seriously hinder the Select Committee’s ability to timely complete a comprehensive investigation and recommend effective remedial legislation.”
Trump’s legal arguments “did not present a hard case” and are unlikely to prevail, Justice Department attorney Elizabeth J. Shapiro wrote.
Trump went to court on Oct. 18, suing the chairman of the House Jan. 6 committee, Rep. Bennie G. Thompson (D-Miss.), and National Archivist David Ferriero to prevent the handover of records including Trump White House call and visitor logs, emails, draft speeches, talking points and memos regarding potential lawsuits against states Biden won.
The 763 disputed pages set for release this month are the first batches of what are expected to be thousands of pages in response to the committee’s request.
The pace of scheduled releases is spurring action by the courts. Oral argument before the appeals panel is set for three weeks after Chutkan issued her opinion, which came three weeks after Trump’s suit, suggesting the D.C. Circuit could make its ruling before the new year.
In a written statement issued after Chutkan had ruled in favor of releasing the records on Tuesday, House Speaker Nancy Pelosi (D-Calif.) said, “The District Court has delivered an important victory for the Constitution, the rule of law and the American people.”
“No one can be allowed to stand in the way of the truth — particularly not the previous President, who instigated and encouraged the insurrection,” Pelosi’s statement said.
White House spokesman Mike Gwin said Chutkan’s opinion was consistent with Biden’s statement calling Jan. 6 an “existential crisis” for democracy.
“The Biden administration will continue to work expeditiously with the Select Committee as it performs its important duty on behalf of the Nation to uncover the facts surrounding the gravest threat to our democracy and constitution in modern history,” Gwin said.
The legal battle over Trump’s White House documents foreshadows similar fights over the House investigation as it has issued subpoenas to at least 20 top Trump aides, including former Trump chief of staff Mark Meadows and adviser Stephen K. Bannon.
The House last month voted to hold Bannon in criminal contempt for failing to cooperate, referring his case to the Justice Department for potential prosecution. Former Justice Department official Jeffrey Clark also refused to answer questions during a closed-door interview with the panel about whether Trump attempted to use the department to overturn the election.
Others issued subpoenas were legal scholar John Eastman, who wrote a memo about how Trump could seek to overturn the 2020 election to stay in office, and former New York police commissioner Bernard Kerik, who with Eastman was active in the Willard hotel “command center” where Trump’s loyal backers oversaw efforts to leverage the mob attack to get Vice President Mike Pence to reject the results.
Ann E. Marimow and Rachel Weiner contributed to this report.