A federal judge appeared ready to side Thursday with Congress and the Biden White House against former president Donald Trump’s effort to block the release of hundreds of pages of White House records sought by a House committee investigating the Jan. 6 attack on the U.S. Capitol.
Earlier versions of this article misidentified former Acting Attorney General Jeffrey Rosen. This version has been updated.
But the judge indicated the power to assert executive privilege claimed by Trump to withhold the records from Congress ultimately rests with the current president, Joe Biden, who has waived privilege and approved their release. When a current and former president disagree, courts ought to defer to the incumbent, she suggested.
“Isn’t the person who is best able and in a position to determine the executive privilege, the executive?” Chutkan asked in a two-hour oral argument in federal court in Washington.
“It’s not a separation of powers fight [with Congress]. It may be a dispute between a former president and a current president . . . but . . . there’s only one executive,” the judge continued.
Trump on Oct. 18 sued the chairman of the House’s Jan. 6 select committee and the head of the National Archives to block the handover of executive branch records sought by the panel, which has also issued subpoenas to four top aides including former Trump chief of staff Mark Meadows and adviser Stephen K. Bannon. Trump’s attorneys argued that former presidents retain a residual right to executive privilege. Presidents require “full and frank” advice to carry out their duties, and the confidentiality of such deliberations must survive more than a few months or years after they leave office to protect the institution of the presidency, his lawyers asserted.
“Not only is this an important argument and a monumental argument, but one that is going to have consequences down the line for generations potentially,” Trump attorney Justin Clark said in court.
Clark also argued the Jan. 6 investigative committee was explicitly denied authority to write legislation, failing a test set by the Supreme Court last year requiring that congressional subpoenas for a president’s personal records serve a “valid legislative purpose,” rather than serve as fishing expeditions or pursuit of political dirt. Clark asked that Chutkan at least review disputed records in private before allowing their release.
Otherwise, unfettered disclosure by presidents of a predecessor’s records would “blow a hole” in the exercise of executive privilege that “you could drive a truck through,” he warned, threatening future leaders of both parties and turning the use of the privilege into a partisan political exercise.
Chutkan disagreed. She disputed that the high court’s July 2020 Mazars decision allowing the House to obtain Trump’s personal banking and accounting records for years before he took office applied to official records “that are quintessentially about government business.”
She expressed astonishment at the claim that Congress would not consider legislation after rioters breached the building believing Trump wanted them to vindicate his unfounded claims of fraud and overturn the results of the 2020 election.
“The January 6th riots happened in the Capitol — that is literally Congress’s house,” Chutkan said.
“Are you really saying that the president’s notes, talking points, and telephone conversations on January 6th, for example, have no relation to matters on which Congress is considering legislation?” Chutkan said, such as the integrity of federal elections, domestic security or the security of the Capitol.
“How are visitor logs which reveal who came to the White House on specific dates, how are those privileged?” she asked, or notes of who Trump was calling or speaking to “as people were breaking windows and climbing into the Capitol?”
Attorneys for House Jan. 6 select committee chairman Bennie G. Thompson (D-Miss.) concurred.
House General Counsel Douglas N. Letter said Congress was exploring whether the roots of the Capitol violence reached back to as early as April 2020, when he said Trump was tweeting about election fraud, “undermining the American people’s confidence in the election” and “fomenting” anger if he lost.
“Remember, one of the things we’re looking at is, what was the former president thinking?” Letter said.
“Are you telling me we are again talking about, ‘What did the president know, and when did he know it?’ ” Chutkan said, reprising the query that came to encapsulate the probe into Richard Nixon’s coverup of his 1972 presidential reelection campaign’s break-in at the Democratic National Committee headquarters, which led to his resignation.
“I think we are, your honor, that is absolutely central to this inquiry,” Letter said.
“Clearly we have a major danger when a significant percentage of the population thinks an election is stolen, even though any number of judges have spoken that there’s no evidence of that,” Letter said. “We want to know how much of this was inside the White House. How much with Congress. How much with outside groups, the Proud Boys, et cetera . . . How broad is this whole problem that we now face? Where did it come from?”
Chutkan pressed all sides about how judges might referee a dispute between a former and current president over executive privilege, or whether there was any limiting principle to a president’s authority in such case, a question never before decided by the courts.
But Justice Department attorney Elizabeth Shapiro, arguing on behalf of the National Archive, said the answer was simple — an incumbent president “is in the best position to assess the present and future needs of the executive branch,” as the Supreme Court ruled in a landmark 1977 opinion giving the archives access to Nixon’s records.
Former presidents can raise arguments to the current executive, who can whittle down the scope of Congress’s requests through the traditional political “accommodation” process between the branches, Shapiro argued. Trump himself since leaving office has waived privilege when the House sought testimony from former Acting Attorney General Jeffrey Rosen, Shapiro said.
“The fact that the privilege can be overcome, it’s not absolute; that the incumbent is to be accorded great weight — in fact courts do it all the time; and that past presidents have let it happen, and this same former president has permitted it to happen; all those factors come into the balance,” Shapiro said, “but we have only one president.”
In court filings, the government has said Trump is trying to withhold nearly 800 pages of documents. Those include visitor activity and call logs; emails communications, draft speeches and talking points on election irregularities; memos regarding potential lawsuits against states Biden won.
They also include “potential or scheduled briefings and telephone calls concerning the January 6 certification and other election issues,” and a draft executive order on the topic of election integrity, the filing stated.
The archives faces a Nov. 12 deadline to release a first batch of information, which Trump has asked Chutkan to enjoin. The loser is expected to appeal and the overall legal battle is expected to continue well into next year, which legal analysts said could enable Trump to run out the clock until the Nov. 2022 midterm elections, when Republicans hope to unseat this Democratic Congress.
Chutkan cited concern over delay, such as the possibility that a “document-by-document review” would slow the response to Congress’s investigation to “a snail’s pace … and wouldn’t that be an intrusion by this branch into the executive and legislative branch’s functions?”
Chutkan concluded, “I will issue my opinion and ruling expeditiously.”