WASHINGTON – A federal appeals panel ruled Thursday that a House committee investigating the Jan. 6 Capitol insurrection should get access to Donald Trump’s presidential records.
Trump fought the subpoena to the National Archives and Records Administration by arguing under executive privilege that releasing confidential documents would deprive future presidents of candid advice from aides.
But President Joe Biden waived executive privilege governing the documents. The case focused on whether Biden’s opinion as the sitting president outweighed Trump’s, as previous cases ruled.
“On the record before us, former President Trump has provided no basis for this court to override President Biden’s judgment and the agreement and accommodations worked out between the Political Branches over these documents,” Judge Patricia Millett wrote for the three-judge panel. “Both Branches agree that there is a unique legislative need for these documents and that they are directly relevant to the Committee’s inquiry into an attack on the Legislative Branch and its constitutional role in the peaceful transfer of power.”
The panel denied Trump’s request for an injunction that would have blocked the committee’s access to contested documents.
Beyond the Jan. 6 investigation, the case is important because it set new guidelines on relations between the executive and legislative branches of government. Trump’s lawyers asked for a two-week delay in releasing the documents – if they lost – to provide time for an appeal to the Supreme Court. The appeals panel said the temporary stay on the release of documents would remain in place for 14 days.
Political strategist Steve Bannon faces criminal contempt charges for defying a subpoena from the House committee. The committee plans to meet Dec. 16 with former Justice Department official Jeffrey Clark before the House votes on whether to pursue similar charges against him and announced Dec. 8 that it would pursue a contempt citation against former White House chief of staff Mark Meadows, who also defied a subpoena.
The D.C. Circuit Court of Appeals panel was comprised of Judges Robert Wilkins and Ketanji Brown Jackson with Millett. The panel ruled that Trump failed to establish his likelihood of success in the case or any specific harm that would result from the disclosure of the documents. On the other side, Congress has a uniquely vital interest in studying the attack on the Capitol, to formulate remedial legislation, the court ruled.
“We do not come to that conclusion lightly,” the ruling said. “The confidentiality of presidential communications is critical to the effective functioning of the Presidency for the reasons that former President Trump presses, and his effort to vindicate that interest is itself a right of constitutional import.”
“The President and the Legislative Branch have shown a national interest in and pressing need for the prompt disclosure of these documents,” the panel added.
U.S. District Judge Tanya Chutkan had rejected Trump’s arguments by ruling that Biden’s waiver of executive privilege outweighed the opinion of his predecessor. Supreme Court precedent from a case called Nixon v. the General Services Administration held that the current president’s view on executive privilege outweighs a former president’s.
The House committee has subpoenaed thousands of pages of documents, as it charts minute-by-minute what happened on Jan. 6 and how the administration responded. About 140 police officers were injured in the attack, as a mob ransacked the Capitol and temporarily halted the counting of Electoral College votes that certified Biden’s victory over Trump.
Trump was impeached for inciting the insurrection, but the Senate acquitted him. The contested documents include handwritten notes about what was happening that day and call logs for Trump and Vice President Mike Pence, whose life was threatened as he oversaw the vote counting in his capacity of Senate president.
The National Archives identified nearly 1,600 pages of records that fit the committee’s request, with thousands more to be reviewed, according to the agency. Trump sought to keep nearly half the pages confidential, but the Justice Department replied that they are crucial to the investigation.
The first batch of documents, which was scheduled for release Nov. 12 and postponed while the appeals court considers the case, included 39 pages that Trump claimed should remain confidential under executive privilege. The pages include handwritten notes about events on Jan. 6, appointments for White House visitors and switchboard checklists showing calls to Trump and Pence, according to a court filing from the National Archives.
Another batch of records, which was scheduled for release Nov. 26 and also postponed by the court, included presidential calendars and handwritten notes about Jan. 6, a draft speech for the Save America March, a handwritten list of potential or scheduled briefings and phone calls concerning election issues and a draft executive order concerning election integrity, according to the agency.