Government

REPRIEVE: Trump Gets Temporary Injunction On Release Of Presidential Records To Jan. 6 Committee

Key word is 'temporary.'

By  
on

(Photo by Chip Somodevilla/Getty Images)

It was a good news/bad news kind of night for the former president. On the one hand, he did win a reprieve from the DC Circuit which temporarily enjoined the National Archives from releasing documents to the January 6 Select Committee. On the the other hand, he pulled an appellate panel that has already demonstrated that it has no time for his executive privilege bullshit, and they’ve set a scorching briefing schedule that could resolve this issue the first week of December.

So Merry Christmas, Mister Former President! And a Joyeux Noël to the SCOTUS shadow docket … probably.

After US District Judge Tanya Chutkan refused to enjoin her own order Wednesday night, Trump and his lawyers raced to the DC Circuit demanding an administrative injunction. Perhaps buoyed by reports that the case assignment gods would bless his client with Judges Rao, Walker, and Tatel, Trumpland lawyer Jesse Binnall made his Emergency Motion extra crazy.

“President Trump is likely to prevail on the merits,” he insisted. “In Trump v. Mazars USA, LLP, the Supreme Court fashioned four factors for courts to consider when determining whether congress is acting within the scope of its Article I authority when requesting executive branch records.”

Anyone familiar with the Mazars case will remember that it pertained to Trump’s personal records in the hands of his accountants, not “executive branch records.” And unfortunately for Binnall’s client, he pulled Judge Patricia Millett, who sat on the DC Circuit Mazars panel which told him to turn over his tax returns. Doh!

Similarly, Judge Ketanji Brown Jackson, who was recently elevated to the Circuit Court by President Biden, was extremely unsympathetic to Trump’s expansive claims of executive privilege when he was a sitting president. In 2019, she ordered White House Counsel Don McGahn to sit down and testify to the House Judiciary Committee post haste.

Sponsored

Rounding out the panel is Judge Robert Wilkins, yet another jurist who was originally elevated to the federal bench by President Obama. If the defendants in this case were betting that it would inure to their benefit not to oppose the motion for an administrative stay, they appear to have hit the jackpot.

And while Trump proposed an expedited briefing schedule on his motion to enjoin disclosure, the Circuit Court has done him one better. “It is … further ordered that the motion for an expedited briefing schedule, which the court construes as a motion to expedite consideration of the appeal of the district court’s order denying the motion for a preliminary injunction, be granted.”

They’re not just issuing the injunction on disclosure and asking for briefs. They’ve scheduled oral argument on November 30, after which, having given the plaintiff the benefit of fulsome consideration they can dropkick his claims of executive privilege just like the trial judge did. At which point, Mark Meadows’s claim of privilege is going to look a whole lot weaker — and Steve Bannon’s claim will look even more preposterous than it does today.

Moreover, assuming the panel rules quickly after the 30th, it won’t result in substantial delay to the Select Committee, since only the first set of documents was scheduled to be released today. According to a declaration filed by the Archives’ White House Liaison John Laster, the second tranche was due to be released on November 26. There’s at least one further tranche already submitted to the White House and Trump for review, and the Archives says that it “anticipates providing multiple additional notifications.” So the practical effect of this injunction is that it puts the pedal to the metal on a dispute that the former president has been trying to drag out in hopes of delaying disclosure as long as possible.

So, yes, this is a “win” for Trump. But it’s certainly not a victory.

Sponsored

Trump v. Thompson [District Court Docket via Court Listener]
Circuit Court Order

Elizabeth Dye lives in Baltimore where she writes about law and politics.

Topics

, , , ,