Disappointing, but not unexpected. NBC News reports, Appeals court temporarily blocks Jan. 6 committee from obtaining Trump White House records – but puts the appeal on expedited track with a hearing on November 30.
The House committee investigating the Jan. 6 riot at the U.S. Capitol had been set to receive the first batch of documents, which lawmakers say is key to their investigation, on Friday.
In papers filed Thursday, lawyers for Trump asked the U.S. Circuit Court of Appeals for the District of Columbia to temporarily delay the turnover and to “maintain the status quo” while they push ahead with an expedited appeal.
In a brief unsigned order with no noted dissents, a three-judge panel of the appeals court granted Trump “an administrative injunction” late Thursday and set arguments for Nov. 30.
The order was issued by Judges Patricia Millett, Robert Wilkins and Ketanji Brown Jackson, all of whom were appointed by Democratic presidents. Millett and Wilkins were appointed by former President Barack Obama. President Joe Biden appointed Jackson.
Note: This is an excellent 3 judge panel to affirm the trial court’s exceptionally well-reasoned opinion. With the expedited fast track, I would expect a reasonably quick opinion from this panel sometime in December. The court obviously understands the urgency of the moment.
Courts often issue such injunctions to allow more time to consider the underlying issues. The order was not a ruling on whether Trump or the House committee has a stronger legal argument.
“The purpose of this administrative injunction is to protect the court’s jurisdiction to address appellant’s claims of executive privilege and should not be construed in any way as a ruling on the merits,” the judges wrote Thursday.
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U.S. District Judge Tanya Chutkan had denied a request from Trump’s team to “maintain the status quo” this week, saying “the status quo in this case” is that the National Archives will disclose the documents Friday “absent any intervening court order.” The ruling was one of three she issued in the past week refusing Trump’s demand to keep his records secret.
“At bottom, this is a dispute between a former and incumbent President. And the Supreme Court has already made clear that in such circumstances, the incumbent’s view is accorded greater weight,” she wrote in a separate 39-page ruling.
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White House counsel Dana Remus told the National Archives in a letter obtained by NBC News that the storming of the Capitol on Jan. 6 was “the most serious attack on the operations of the Federal government since the Civil War” and that Trump’s efforts to keep Congress in the dark about what happened “is not in the best interests of the United States.”
“Accordingly, President Biden does not uphold the former President’s assertion of privilege,” Remus wrote.
The House committee and the National Archives did not oppose Trump’s request to the appeals court.
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Trump has also argued that certain witnesses subpoenaed by the committee should not have to answer questions because of executive privilege, as well. One of them, former Trump adviser Steve Bannon, is the subject of a criminal referral to the Justice Department for refusing to cooperate at all.
In a statement earlier Thursday, a lawyer for former Trump chief of staff Mark Meadows suggested that his client would challenge the committee’s requests.
Rep. Bennie Thompson, D-Miss., the panel’s chair, responded by threatening to set in motion the same proceedings that led to Bannon’s criminal referral if Meadows skips out on Friday’s deposition.
Reminder: Once again, there can be no executive privilege for the high crimes of sedition, insurrection and treason. A president cannot shield himself and his co-conspirators by asserting executive privilege for his criminal act of an attempted coup d’etat (the only time this has occurred in American history). At a minimum, the crime-fraud exception, which states that a privilege cannot be used to conceal illegal behavior, should eviscerate his assertion of executive privilege.
See, How the Trump-Biden executive privilege showdown could backfire (excerpt):
Trump is trying to claim that he has final authority over whether those documents can be released. But a statute Congress passed in 2014 specifically gives the final say over executive privilege (at least in the executive branch) to the incumbent president. Trump, while president, had the opportunity to try to shift the power to former presidents but made no such attempt. (Not that Trump worries about making inconsistent arguments, but while he was president he also continually argued in favor of the so-called unitary executive theory, which states that the president has complete control over the executive branch. That, now, would be Biden.)
To prevent Congress from getting the documents, Trump would have to file a lawsuit claiming the law giving Biden ultimate authority is unconstitutional. His best argument rests on language in one of the Nixon cases: The Supreme Court stated that “a former President may also be heard to assert” executive privilege. At the same time, the Supreme Court recognized that the incumbent is in the “best position to assess the present and future needs of the Executive Branch.” Constitutional scholar Jonathan Shaub is of the opinion that the Supreme Court “does appear to recognize a superior right in the incumbent president to assert privilege.”
Even if Trump managed to persuade a court that a former president, not the current president, should make decisions like whether the executive privilege applies, he would still face an uphill battle. The privilege is not absolute. Courts have held that executive privilege must yield when there is a “showing of need.” Therefore the select committee needs to establish only that it has a need for the documents and it should get them. The stated aim of the committee is to investigate the Jan. 6 attack and prevent future attacks. This surely meets the standard of “need.”
[B]ut should Trump file a lawsuit and attempt to defy this particular subpoena [he did], he would then need to worry about the crime-fraud exception, which states, quite sensibly, that a privilege cannot be used to conceal illegal behavior. The Biden administration has already indicated that it will seek to invoke the exception. In rejecting Trump’s claims of executive privilege, the White House counsel wrote, “The constitutional protections of executive privilege should not be used to shield, from Congress or the public, information that reflects a clear and apparent effort to subvert the Constitution itself.”
We do not have case law on whether the crime-fraud exception applies to executive privilege specifically, but if the Biden administration raises the issue, the court will need to address it. And it makes sense to apply the crime-fraud exception to executive privilege: Allowing executive privilege to cover up crimes committed by the executive would (obviously) empower and encourage lawlessness and Constitution-bashing behavior from the chief executive, who swore to defend the Constitution.
Moreover, while courts have not previously applied the exception to executive privilege, they have previously implied that they would. The U.S. Circuit Court of Appeals for Washington, D.C., for example, held that the deliberative process privilege (one component of executive privilege) “disappears altogether when there is any reason to believe government misconduct occurred.” The same court also noted: “It is true, of course, that the Executive cannot, any more than other branches of government, invoke a general confidentiality privilege to shield its officials and employees by the proper government institutions into possible criminal wrongdoing.” Moreover, executive privilege only covers communications “in performance of [a president’s] responsibilities” of office, and a president’s responsibilities and duties of office cannot include attempts to “subvert the constitution.”
We can expect the question of the crime-fraud exception to unfold procedurally the way it does with attorney-client communications: After Trump files his lawsuit, Biden or perhaps the Justice Department would file a motion asking the court to consider whether the crime-fraud exception applies to the material. The motion, of course, would include evidence supporting the claim that the documents include evidence of wrongdoing.
Given what we already know, it is a good bet that the material sought by the committee contains some evidence of wrongdoing. For example, if documents the House has subpoenaed show that Trump or any members of his inner circle intended to delay or hinder counting of the electoral votes on Jan. 6, they would be in violation of 18 U.S.C. 1505. And we already know that Trump and his inner circle discussed how to delay the counting of the electoral votes. See the Eastman “Coup Memo,” which outlined a plan and a legal rationale for overturning the results of the election. [T[he Senate Judiciary Committee released a report concluding, “In attempting to enlist DOJ for personal, political purposes in an effort to maintain his hold on the White House, Trump … arguably violated the Hatch Act.”
Trump may very well still try to use lawsuits to run out the clock on these congressional document requests. This strategy likely would not prevent Congress from getting the documents. But it could force a court to rule that there is reason to believe the documents in question include evidence of wrongdoing — a legal lose-lose scenario that any lawyer worth his retainer would be wise to recommend against.
Trump’s lawyer did not. DOJ must raise the crime-fraud exception to executive privilege, and get a definitive ruling from the District of Columbia Court of Appeals. The ruling would appear to be self-evident. It is doubtful that the U.S. Supreme Court would hold that the long-standing legal doctrine of the crime-fraud exception to privilege does not apply to the high crimes of sedition, insurrection and treason by a president who incited an insurrection in a failed coup d’etat attempt that the entire country watched in real time live on TV.
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