A federal appeals court panel has thrown out former President Donald Trump’s effort to stop congressional Jan. 6 investigators from obtaining his White House records, delivering a forceful rejection of Trump’s effort to stymie the investigation of the attack on the Capitol.
The unanimous 68-page opinion from the U.S. Circuit Court of Appeals for the District of Columbia describes the urgent national interest in an investigation of an attack that threatened the peaceful transfer of power from Trump to President Joe Biden. And it directly connects the chaos of that day to Trump’s own statements calling for a “wild” protest in Washington and urging supporters to march on the Capitol and “fight.”
“The January 6th Committee has … demonstrated a sound factual predicate for requesting these presidential documents specifically,” Judge Patricia Millett wrote for the three-member panel. “There is a direct linkage between the former President and the events of the day.”
Trump has indicated he intends to appeal the ruling to the Supreme Court, and the appeals panel gave him two weeks to try to delay the effect of its ruling — meaning he needs the high court to intervene and slow down the decision before Christmas. But the decision is another resounding victory for lawmakers probing the attack, even if it’s not a final one.
The decision also comes amid a pileup of litigation related to the Jan. 6 investigation. The Justice Department has indicted longtime Trump ally Steve Bannon for refusing to comply with a subpoena from the committee. Former Trump chief of staff Mark Meadows has sued the panel in an effort to stave off a subpoena for his own documents and testimony — and the panel intends to hold him in contempt of Congress on Monday.
At the heart of the appeals court ruling, the judges emphasize that Congress and the sitting president agree on the national security urgency of the Jan. 6 investigation. Biden has repeatedly reviewed records sought by the Jan. 6 committee and determined that the panel’s interest in them outweighs any potential claim of executive privilege by Trump.
“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,” Millett wrote, joined by Judges Robert Wilkins and Ketanji Brown Jackson.
“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,” Millett added.
The judges noted that Trump would have “important insight” into the sensitivity of his own White House’s records. But as a former president, he would not have the full picture of what is in the national interest.
“[I]t is only President Biden who can make a fully informed and circumspect assessment of all the competing needs and interests of the Executive Branch,” they wrote.
A spokesperson for Trump did not immediately respond to a request for comment. However, a Trump attorney told the appeals court judges last week that the former president planned to take the issue to the Supreme Court if the appeals court ruled against him
Liz Harrington, a spokesperson for the former president, pointed in that direction on Twitter after Thursday’s ruling.
“Regardless of today’s decision by the the appeals court, this case was always destined for the Supreme Court,” she wrote. “President Trump’s duty to defend the Constitution and the Office of the Presidency continues, and he will keep fighting for every American and every future Administration.”
Biden, Millett wrote, made a reasoned judgment based on the public interest in an investigation of a threat to the peaceful transfer of power. But even if that were not the case, she wrote, none of Trump’s other arguments had merit.
“We need not conclusively resolve whether and to what extent a court could second guess the sitting President’s judgment that it is not in the interests of the United States to invoke privilege,” Millett wrote. “Under any of the tests advocated by former President Trump, the profound interests in disclosure advanced by President Biden and the January 6th Committee far exceed his generalized concerns for Executive Branch confidentiality.”
The timing of the appeals court’s decision reflected a sense of urgency around the congressional investigation. While it takes months or sometimes years for the court to resolve most of its cases, the court delivered its opinion just nine days after hearing oral arguments.
All three of the appeals judges who considered the issue are Democratic appointees. Millett and Wilkins were appointed by former President Barack Obama, while Jackson is Biden’s only appointee to the D.C. Circuit.
The ruling Thursday upheld a decision last month by U.S. District Court Judge Tanya Chutkan, an Obama appointee, who denied Trump’s request for a preliminary injunction stopping the National Archives from transmitting records to the House committee.
Like Chutkan, the appeals panel described the Jan. 6 investigation as a matter of urgency for the survival of the nation.
“The events of January 6th exposed the fragility of those democratic institutions and traditions that we had perhaps come to take for granted,” Millett wrote. “In response, the President of the United States and Congress have each made the judgment that access to this subset of presidential communication records is necessary to address a matter of great constitutional moment for the Republic. Former President Trump has given this court no legal reason to cast aside President Biden’s assessment of the Executive Branch interests at stake, or to create a separation of powers conflict that the Political Branches have avoided.”
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