Trump sued, demanding 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 despite President Biden agreeing to the release of the material.
“The constitutional protections of executive privilege should not be used to shield, from Congress or the public, information that reflects a clear and apparent effort to subvert the Constitution itself,” Biden White House Counsel Dana A. Remus wrote on Oct. 8.
Remus said the conduct Congress is investigating “extends far beyond typical deliberations concerning the proper discharge of the President’s constitutional responsibilities,” to include an assault on democratic institutions “fanned by those sworn to protect them.”
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 Justin R. 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.
U.S. District Judge Tanya S. Chutkan of D.C. 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 production of records.
As for the presidency, Chutkan said 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, “He [Trump] retains the right to assert that his records are privileged, but the incumbent President ‘is not constitutionally obliged to honor’ that assertion.”
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.
A panel of the U.S. Court of Appeals for the District of Columbia Circuit blocked the imminent release of records and fast-tracked oral arguments for Tuesday.
The case is being reviewed by circuit judges Patricia A. Millett, Robert L. Wilkins and Ketanji Brown Jackson. All three were nominated by Democratic presidents. Jackson was recently elevated to the appeals court from the U.S. District Court by Biden.
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.
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 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 finding that 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 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 he acted on advice of counsel after Trump invoked executive privilege.