A three-judge panel of the US Court of Appeals for the District of Columbia has temporarily blocked the National Archives and Records Administration (Nara) from delivering Trump administration records to the House committee investigating the 6 January insurrection.
The panel, consisting of Circuit Judges Patricia A Millett and Robert L Wilkins — both of whom were nominated for the court by former president Barack Obama — and an appointee of President Joe Biden, Circuit Judge Ketanji Brown Jackson — issued a brief two-page order granting former President Donald Trump’s request for a temporary injunction which prevents Nara from turning a tranche of documents created in the White House in the period leading up to the worst attack on the Capitol since the Burning of Washington in 1814.
The court also granted Mr Trump’s request to have his appeal considered expeditiously. Mr Trump’s attorneys will file their opening brief with the court on 16 November, and the defendants — the House Select Committee to Investigate the January 6th Attack on the Capitol, Representative Bennie Thompson (the committee’s chairman), Nara, and Archivist of the United States David Ferriero — will file a response one week later on 22 November.
Mr Trump’s attorneys will then file a further response two days later, and the court will hear oral arguments on the matter on 30 November at 9.30am.
The former president filed his lawsuit against the committee and Nara last month in a bid to keep the committee from gaining access to the documents, which include call and visitor logs, memoranda, draft executive orders, and other records.
The former president is claiming that he can block Congress from gaining access to the requested documents because they are protected under executive privilege, a legal doctrine which protects communications between and among a president and his advisers.
Mr Trump turned to the courts for assistance after White House Counsel Dana Remus announced that President Joe Biden had decided to not make any claim of privilege over the documents, citing the “unique and extraordinary circumstances” presented by the attack, which was perpetrated by the former president’s supporters in hopes of preventing Congress from certifying Mr Biden’s 2020 election win.
In his emergency motion requesting a stay of the district court’s order, Mr Trump’s attorneys argue that absent a stay of the district court’s ruling, the former president “will suffer irreparable harm through the effective denial of a constitutional and statutory right to be fully heard on a serious disagreement between the former and incumbent President”.
“President Trump is one of only five living Americans who, as former Presidents, are entrusted with protecting the records and communications created during their term of office,” they wrote, adding that the former president “has the right to be heard and to seek judicial intervention should a disagreement between the incumbent and former Presidents arise regarding congressional requests and executive privilege”.
Such an argument is similar to one that was already rejected by US District Judge Tanya Chutkan, who on Tuesday wrote that Mr Trump had failed to show that he would suffer any irreparable injury from the transfer of documents to the committee.
“To the extent Plaintiff argues that he, as a private citizen, will suffer injury, he has not identified any personal interest that is threatened by the production of Presidential records. He claims no personal interest in the records or the information they contain, and he identifies no cognizable injury to privacy, property, or otherwise that he personally will suffer if the records are produced, much less a harm that is ‘both certain and great’ ... if injunctive relief is denied,” she wrote, adding later that the privilege Mr Trump is claiming is meant to benefit the country, not presidents personally.
Judge Chutkan also ruled that despite Mr Trump’s claims to the contrary, the right to invoke executive privilege belongs to the sitting president, meaning that it is Mr Biden — not Mr Trump — who is in the best position to decide whether it is in the public interest for Congress to see the documents in question.
“Plaintiff 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’,” she wrote. “But presidents are not kings, and Plaintiff is not president. He retains the right to assert that his records are privileged, but the incumbent president ‘is not constitutionally obliged to honour’ that assertion”.
The judge added later that Mr Biden’s decision not to use the privilege “is consistent with historical practice and his constitutional power”.
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