A federal appeals court rebuffed former President Donald Trump’s attempt Thursday to block the release of records to the House panel investigating the Jan. 6 Capitol riot — cueing up appeals that may reach the Supreme Court.
The three-judge panel of the DC Circuit Court of Appeals wrote that “a rare and formidable alignment of factors supports the disclosure of the documents at issue.” Each of the judges on the panel were nominated by President Biden or former President Barack Obama.
Trump is fighting Biden’s decision to allow the National Archives to hand over a cache of records to a House select committee investigating why a wild mob of Trump supporters stormed the Capitol to disrupt the count of electoral votes from the 2020 election.
Trump calls the committee’s work a “witch hunt” and his supporters point out that each member of the panel, including the body’s two Republican members, voted to impeach Trump for allegedly inciting the riot.
Trump spokeswoman Liz Harrington tweeted, “Regardless of today’s decision by the the [sic] appeals court, this case was always destined for the Supreme Court. President Trump’s duty to defend the Constitution and the Office of the Presidency continues, and he will keep fighting for every American and every future Administration.”
The appeals court found that it would be improper for judges to intervene in the records request when the executive and legislative branches are already in agreement to release the documents.
“To allow the privilege of a no-longer-sitting President to prevail over Congress’s need to investigate a violent attack on its home and its constitutional operations would ‘gravely impair the basic function of the’ legislature,” ruled Judges Patricia Millett, Robert Wilkins and Ketanji Brown Jackson.
“Weighing still more heavily against former President Trump’s claim of privilege is the fact that the judgment of the Political Branches is unified as to these particular documents.
“The judges also disagreed with Trump’s argument that the large number of documents could make it difficult for the head of the National Archives to review them all.
“[I]f there were no limits to Congress’s ability to drown a President in burdensome requests the minute he leaves office, Congress could perhaps use the threat of a post-Presidency pile-on to try and influence the President’s conduct while in office,” the judges wrote. “But once again, former President Trump has made no showing that he has been saddled with anything close to such a daunting burden. The Archivist is the one who bears the burden of searching for responsive records. The records he has found have been separated into manageably sized tranches for Mr. Trump’s review, which diffuses any burden.”
Trump filed a lawsuit in October to halt the release of the documents. The case’s next stops could include en banc review by all judges on the DC Circuit and possible review by the Supreme Court.
Trump wrote in a letter to the National Archives that an initial tranche of records sought by the committee could number “in the millions” and can’t be released because of legal protections “including but not limited to the presidential communications, deliberative process, and attorney-client privileges.”
The Biden administration declined to assert executive privilege over the records — a rare move by a current president.
US District Court Judge Tanya Chutkan last month ordered the Archives to hand over the records — which include phone logs, speech drafts and other written evidence — writing, “Presidents are not kings, and Plaintiff is not President.”
The court fight unfolds as Republicans campaign to flip control of the House in next year’s midterm elections. Democrats hold a narrow majority and a president’s party typically loses seats in midterms. If Republicans retake the House, they’re expected to disband the select committee upon taking office in January 2023.
An analysis of video by the Wall Street Journal has found that members of the far-right Proud Boys group were key players in initiating clashes with police, including helping collapse an outer perimeter while Trump was still speaking to a large crowd near the White House and telling thousands of people to march toward the Capitol while claiming,” this election was stolen from you, from me, and from the country.”
According to a recent Reuters report, the FBI has found no evidence that the riot was an organized coup attempt.
Trump supporter Ashli Babbitt was fatally shot during the mayhem and three other Trump supporters died of medical emergencies. US Capitol Police officer Brian Sicknick died of a stroke one day after battling the rioters and several police officers and at least one accused rioter later committed suicide.
In a lengthy analysis for the legal blog Lawfare earlier this year, former Justice Department attorney Jonathan Shaub wrote that the rights of ex-presidents over documents are uncertain. He wrote about the murky legal terrain in the context of Trump’s Senate impeachment trial for allegedly inciting the violence.
“If Trump attempts to assert executive privilege in the coming impeachment trial and Biden refuses to back it, it would be the first time, to my knowledge, that a former president has attempted to assert executive privilege against Congress contrary to the wishes of the current president,” he wrote. “Nothing in [court precedent from the case Nixon v. Administrator of General Services] or any other judicial decision compels a particular result when such a clash exists. Nor are there relevant congressional precedents.”