Swift ruling on Trump tests his stonewall tactic

Judge: Congress can obtain files related to Jan. 6

On the surface, a judge’s ruling on Tuesday night that Congress can obtain Trump White House files related to the Jan. 6 riot seemed to echo another high-profile ruling in November 2019. In the earlier matter, a judge said a former White House counsel must testify about then-president Donald Trump’s efforts to obstruct the Russia investigation.

In both cases, Democratic-controlled House oversight committees issued subpoenas, Trump sought to stonewall those efforts by invoking constitutional secrecy powers, and Obama-appointed U.S. District Court judges — to liberal cheers — ruled against him. Each ruling even made the same catchy declaration: “presidents are not kings.”

But there was a big difference: The White House counsel case two years ago had chewed up 3 ½ months by the time Judge Ketanji Brown Jackson issued a 120-page opinion to end its first stage. Just 23 days elapsed between Trump’s filing of the Jan. 6 papers lawsuit and Judge Tanya Chutkan’s ruling against him.

The case, which raises novel issues about the scope of executive privilege when asserted by a former president, is not over: Trump is asking an appeals court to overturn Chutkan’s ruling and, in the interim, to block the National Archives from giving Congress the first set of files Friday. The litigation appears destined to reach the Supreme Court, which Trump reshaped with three appointments.

But if the rapid pace set by Chutkan continues, it would mark a significant change from how lawsuits over congressional subpoenas went during the Trump era.

The slow pace of such litigation worked to the clear advantage of Trump, who vowed to defy “all” congressional oversight subpoenas after Democrats took the House in the 2018 midterm. He frequently lost in court, but only after delays that ran out the clock on any chance that such efforts would uncover information before the 2020 election.

So alongside the substantive issues about executive privilege, one key question now is whether Trump can again tie the matter up in the courts long enough that even a Supreme Court ruling against him would come too late for the special committee in the House that is seeking the Trump White House documents for its investigation into the Jan. 6 riot.

Specifically, the Jan. 6 committee has demanded detailed records about Trump’s every movement and meeting on the day of the assault, when Trump led a “Stop the Steal” rally and his supporters then sacked the Capitol in an attempt to block Congress from certifying Joe Biden’s Electoral College victory.

The chairman of the committee, Rep. Bennie Thompson, D -Miss., has said he wants to wrap up by “early spring.” In that case, the committee would need access to the files it has subpoenaed by late winter for that information to be part of any report.

Legally, the committee could continue working through the rest of 2022. If Republicans retake the House in the midterm election, the inquiry would very likely end.

What happens next in the Jan. 6 White House files case may turn on the inclinations of whichever three judges from the U.S. Court of Appeals for the District of Columbia Circuit are randomly assigned to the panel that will hear Trump’s appeal.

Of the court’s 11 fulltime judges, seven are Democratic appointees — including Jackson, whom Biden elevated earlier this year — and four are Republican appointees, including three named by Trump. The circuit also has five “senior status” judges who are semiretired but sometimes get assigned to panels; four of those five are Republican appointees.