Government

DC Circuit Dropkicks Trump's Demand To Block Release Of Records To Jan. 6 Committee

That was fast!

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President Donald Trump Departs White House En Route To Colorado

(Photo by Win McNamee/Getty Images)

We have discovered the former president’s kink, and it is getting spanked after dinner by federal judges. Lucky for him, it happened again last night as the US Circuit Court of Appeals for the District of Columbia whacked the demand for an injunction on the National Archives disclosing his presidential records to the January 6 Select Committee.

Siding with US District Judge Tanya Chutkan, DC Circuit Judges Patricia Millett, Robert Wilkins, and Ketanji Brown Jackson found no compelling reason for the court to elevate Donald Trump’s claim of executive privilege over President Biden’s waiver of it.

In one sense, the opinion was narrow, with the appellate panel refusing to wade into the thorny issue of when a court might “after a sufficient showing of congressional need, second guess a sitting President’s judgment that invoking privilege is not in the best interests of the United States.” Having concluded that the former president failed to meet his burden, even under any of the standards he himself proposed, they simply ducked the hard call.

But even so, the court made several findings which are likely to affect pending claims by other members of the Trump administration. For instance, Steve Bannon, Mark Meadows, and John Eastman have all argued that the Committee has no legitimate legislative purpose and is engaged in prohibited law enforcement activity.

The court had no time for that, with Judge Millet writing, “The very essence of the Article I power is legislating, and so there would seem to be few, if any, more imperative interests squarely within Congress’s wheelhouse than ensuring the safe and uninterrupted conduct of its constitutionally assigned business.”

As for the argument that the Committee is playing prosecutor, the court observed that “[t]he mere prospect that misconduct might be exposed does not make the Committee’s request prosecutorial. Missteps and misbehavior are common fodder for legislation.”

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Similarly, the judges were unwilling to treat vague handwaving about protecting the institution of the presidency as an imminent harm to be enjoined, particularly when Trump seeks only to vindicate his individual right to assert the privilege. He has never once explained why releasing the White House visitor logs would endanger the presidency or harm the national interest.

“In support of this claim, he presses the undisputed points that the confidentiality of presidential communications protects ‘the proper functioning of the government’ and ‘ensure[s] full and frank advice’ for future Presidents,” Judge Millett writes. “That is all he offers. And that is not close to enough.”

The court was similarly unimpressed with the suggestion that it undertake its own privilege review in camera, essentially doing the work for Trump’s lawyers who failed to plead it with any particularity.

Mr. Trump has made no record nor even hinted to this court what context or information has been overlooked or what information could override President Biden’s calculus. We cannot just presume it. Nor can we, on our own, hunt through the documents for sensitivities or concerns that have never been articulated by Mr. Trump.

And while this case involves competing privilege claims under the Presidential Records Act, it doesn’t bode well for Trump’s associates who claim they are refusing to testify as a selfless act to protect future presidential advisers. If Trump can’t simply shout “Executive privilege!” and refuse to disclose all documents, then Mark Meadows is probably going to have to do better than shouting “Executive privilege!” and refusing to answer any questions at all.

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The order gives Trump 14 days to appeal to the Supreme Court, as he has said he intends to do. But the decision seems crafted to withstand review in several ways.

While it doesn’t use the words “theory of the unitary executive,” it does stress the preposterousness of allowing a former president to make decisions for an incumbent. And it expresses extreme reluctance to wade into a dispute between the executive and legislative branches, citing the Mazars preference for the “hurly-burly, the give-and-take of the political process.”

“A court would be hard-pressed under these circumstances to tell the President that he has miscalculated the interests of the United States, and to start an interbranch conflict that the President and Congress have averted,” Judge Millett writes.

Moreover, the Supreme Court spent four years according Donald Trump the presumption of regularity. When, as here, President Biden spent 30 days conducting a privilege review and meticulously laid out his reason for releasing the documents, the court will not treat them as “the whim[] of [a] sitting President who may be unable [to] see past his own political considerations.”

The judges did not add “it’s not like he put out a 5am tweet saying ‘I am releasing all the documents so Kevin McCarthy can put Crooked Hillary in jail and help me get reelected,’ leaving his advisers to retcon a legitimate purpose.” That part is simply implied.

In a passage of epic judicial shade, the court writes that “President Biden’s judgment is of a piece with decisions made by other Presidents to waive privilege in times of pressing national need,” noting that, during the Watergate hearings, Nixon allowed his advisers to testify; Reagan did the same after the Iran-Contra affair; President Bush even allowed Vice President Cheney to testify to Congress after September 11.

And when you find yourself being compared unfavorably to Richard Nixon …

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

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