“Every Congress will point to some unprecedented thing about ‘this President’ to justify a request for his presidential records,” they wrote.
Trump is asking the appeals court to grant a stay that would block the House select committee investigating the storming of the Capitol from receiving Trump-era presidential records it has requested from the National Archives. Their request triggered a complex process — set out in federal recordkeeping laws — that included asking President Joe Biden for sign-off and then offering Trump a chance to object.
The records, members of the Jan. 6 committee say, are crucial to understanding Trump’s behind-the-scenes efforts to overturn the results of the 2020 election, including his bid to weaponize the Justice Department and lean on state legislators to reverse his defeat.
Biden has repeatedly sided with the House on all but a small number of the requested records, which are being reviewed in batches. Earlier this month, U.S. District Court Judge Tanya Chutkan turned down Trump’s request for an injunction, saying he was unlikely to prevail in the case.
Chutkan said that Biden’s decision not to back Trump’s executive privilege claim seriously undermined it.
“Presidents are not kings, and Plaintiff is not President,” Chutkan wrote in her ruling.
However, Trump’s new brief argues that Chutkan was too dismissive of the executive privilege interests of former presidents.
“The law is clear that disagreements between incumbent and former Presidents on the assertion of executive privilege over records created during such former President’s tenure are subject to meaningful judicial review, not a rubber stamp,” Trump’s lawyers wrote.
Trump’s lawyers also repeatedly pilloried Biden’s decision not to back his predecessor’s privilege claim, alleging that Biden’s stance was driven by “political calculations.”
Biden, for his part, has emphasized through his White House lawyers that he views the Jan. 6 attack on the Capitol as an unprecedented threat to democracy worthy of a thorough congressional investigation. He has opted to waive executive privilege repeatedly to help facilitate that probe.
Much of the dispute stems from a Nixon-era Supreme Court ruling that determined that former presidents still retain a degree of authority over their White House records. But the courts have never grappled, until now, with what happens if the sitting president waives executive privilege over the objections of his predecessor.
Chutkan, in her ruling, made clear she agrees with most legal scholars that the incumbent president’s authority on matters of privilege far outweigh the interests of a former president, who no longer holds any executive authority. Presidents, by nature, protect the prerogatives of the executive branch and are better suited to determine what should be kept secret and what should be released. In addition, she accepted arguments from Congress and the National Archives that federal records laws contemplate most White House records eventually becoming public.
Trump’s attorneys did not address that aspect of Chutkan’s ruling.
Trump is instead asking the appeals court to consider the political motivations of lawmakers and the White House — and to presume that rival political parties are likely to seek to punish political opponents above other potential prerogatives.
Chutkan’s ruling “would allow Congress, the most political branch, unfettered access to presidential records whenever the same party is in control of the Executive and Legislative branches,” they attorneys argued. “This would undoubtedly gut the executive privilege.”
Trump’s attorneys contend that given Congress’ current tendency to legislate in a wide variety of areas, granting wide subpoena power to committee investigators would make their power essentially limitless.
“There is virtually, if not literally, nothing under the sun that Congress could not request by the Committee’s and the lower court’s standard,” Binnall and Clark wrote. “In this age, there is essentially no document that does not directly, let alone tangentially, relate to the functioning of, or is under the regulation of or could be under the regulation of, or is spent by or funded by or could be spent or funded by, some part of the federal government.”
Trump’s brief notes that the Presidential Records Act includes provisions “to ensure that executive confidentiality would be maintained,” but the submission neglects to mention that most White House records are subject to public release under the Freedom of Information Act 12 years after a president leaves office.