Federal appeals court blocks release of Trump records related to Jan. 6 attack
Nov. 30 hearing set for oral arguments on privilege assertion
WASHINGTON — A federal appeals court on Thursday blocked the imminent release of records of former President Donald Trump’s White House calls and activities related to the Jan. 6 Capitol attack after a lower court found that President Joe Biden can waive his predecessor’s claim to executive privilege.
The U.S. Court of Appeals for the D.C. Circuit granted a temporary injunction while it considers Trump’s request to hold off any release pending appeal, and fast-tracked oral arguments for a hearing Nov. 30.
The order came after U.S. District Judge Tanya Chutkan of Washington on Tuesday cleared the way for 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.
“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 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.
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 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 by Democratic presidents.
In her ruling, Chutkan said Trump failed to identify any “injury to privacy, property, or otherwise that he personally will suffer” from production of records.
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 Nixon’s 1972 reelection campaign, the arms-for-hostages Irancontra affair under Ronald Reagan, and the Sept. 11, 2001, terrorist attacks on New York City and the Pentagon.
“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 on the ability of future executive branch advisers to provide full and frank advice,” Chutkan said.