Filing seeks Trump-files shield
Hold them until executive-privilege claim settled, brief says
WASHINGTON — Former President Donald Trump asked a federal appeals court Tuesday to block the National Archives from giving Congress quick access to records from his White House related to the Jan. 6 riot at the Capitol, arguing that litigation over whether they are properly shielded by his claim of executive privilege should fully play out first.
In a 54-page brief filed before the Court of Appeals for the District of Columbia Circuit, Jesse R. Binnall, a lawyer for Trump, reiterated his argument that the Constitution gives the former president the power to keep those files confidential even though he is no longer in office — even though President Joe Biden refused to assert executive privilege over them.
“The stakes in this case are high,” Binnall wrote, adding that a decision to uphold Congress’ subpoena over Trump’s objections would set a precedent that would shift the balance between the legislative and executive branches.
“It is naive to assume that the fallout will be limited to President Trump or the events of Jan. 6, 2021,” he 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.”
The dispute raises issues about the scope of executive privilege when invoked by a former president without the support of the incumbent. It centers on a subpoena issued by the House committee investigating the Jan. 6 attack on the Capitol by Trump supporters seeking to block Congress from certifying Biden’s election win.
The committee is seeking White House documents that would show Trump’s movements, meetings and communications before and during the day of the riot. Jan. 6 began with a rally convened by Trump at which he repeated his unproven assertion that the election was stolen from him while encouraging his supporters to “fight like hell” and to walk down to the Capitol.
After Biden, through his White House counsel, told the head of the National Archives that he believed it was in the public interest for the Jan. 6 committee to obtain the White House files and so would not invoke executive privilege over them, Trump filed a lawsuit, seeking an injunction blocking the agency from giving the records to Congress.
Last week, U.S. District Judge Tanya Chutkan sided with Congress and the Biden administration. She ruled that while Trump could invoke executive privilege, whatever residual secrecy powers he possesses were outweighed in these circumstances by the constitutional investigative authority of Congress backed by Biden.
Trump “does not acknowledge the deference owed to the incumbent president’s judgment. His position that he may override the express will of the executive branch appears to be premised on the notion that his executive power ‘exists in perpetuity,’” Chutkan wrote. “But presidents are not kings, and plaintiff is not president.”
The National Archives had been scheduled to provide a first batch of documents to Congress last Friday. Chutkan declined to block the transfer of the documents from proceeding while Trump appealed her ruling, but the D.C. Circuit appeals panel issued a short-term block to freeze matters in place for now.
The chair of the Jan. 6 committee, Rep. Bennie Thompson, D-Miss., has said he wants to finish its work by late spring, raising the question of whether the litigation will thwart the panel from obtaining access to the records before it completes any final report.
The appeals court panel has scheduled arguments for Nov. 30 on the preliminary question of whether to continue to block the National Archives from turning over any papers to Congress while it considers the legal merits of Trump’s executive privilege claim. Should it drop that block, Trump would most likely appeal to the Supreme Court.