DC Circuit Delays Trump Paper Release

The matter of Executive Privilege and former Presidents is settled law.

WaPo (“Appeals court temporarily bars release of Trump White House records to House Jan. 6 committee“):

A federal appeals court on Thursday blocked the imminent release of records of President Donald Trump’s White House calls and activities related to the Jan. 6 Capitol attack after a lower court found that President Biden can waive his predecessor’s claim to executive privilege.

The U.S. Court of Appeals for the D.C. Circuit granted a temporary injunction while it considers Trump’s request to hold off any release pending appeal, and fast-tracked oral arguments for a hearing Nov. 30.

Only in the judicial system is a three-week delay considered “fast-tracked.”

The order came after U.S. District Judge Tanya S. Chutkan of Washington on Tuesday cleared the way for handover of documents to a House investigative committee, ruling that an ex-president’s claim to a residual right to withhold records from Congress after leaving office does not continue in perpetuity.

“Presidents are not kings, and Plaintiff is not President,” Chutkan wrote.

That’s indisputable.

In a 15-page emergency motion filed Thursday, Trump’s attorneys asked to keep the documents secret for now, and proposed that all sides brief the court next week on whether to keep them so for the weeks or months an appeal may take to decide. Trump’s legal team said the case presented serious, novel questions about whether a former president can sue a successor to withhold government records from Congress, and that the institution of the presidency would be irreparably harmed if the documents were released beginning at 6 p.m. Friday as planned.

“The disagreement between an incumbent President and his predecessor from a rival political party highlights the importance of executive privilege and the ability of Presidents and their advisers to reliably make and receive full and frank advice, without concern that communications will be publicly released to meet a political objective,” Trump attorney Jesse R. Binnall wrote.

That is not a terrible argument. The point of executive privilege, after all, is to allow Presidents and their staffs to communicate openly and freely without fear that said communications will be made public. If they’re subject to subpoena less than a year out of office, there’s certainly a chilling effect. Then again, privilege can’t be infinite. If the President is credibly accused of high crimes, he doesn’t have a right to keep those crimes secret.

And time is of the essence here:

Capping days of legal drama, the appeals court rocketed consideration of the case through federal courts in Washington. While granting an injunction pending further order, the court set a schedule that signaled it would act swiftly to decide whether to withhold records while an appeal is pending. If it declines, the documents would be released, effectively mooting the case in a victory for the House.

Trump could still appeal to the Supreme Court, and a ruling keeping records secret could work to his advantage if litigation is prolonged through the November 2022 midterm elections, when Republicans hope to take the majority in what is now a Democratic-led Congress.

I have long railed against the criminalization of politics, wherein the legal system is used to gain leverage against opponents. But we’re now seeing the flip side: one political party that consistently and almost universally refuses to pursue justice in the case of their own members. Republicans refused to cooperate in the impeachment proceedings after the 6 January attacks and have stonewalled the subsequent Congressional inquiry. And there’s simply no question that it will go away if not concluded before the next Congress is seated, presuming the natural gain by the out party.

The scheduling order was issued by Judges Patricia Millett, Robert Wilkins and Ketanji Brown Jackson, who also will hear the case. All three were nominated to the bench by Democratic presidents and Jackson is a recent nominee of Biden.

So, I don’t love this. I think the ruling will and should go against Trump but the optics of an all-Democratic panel will just further politicize and thus delegitimize the judiciary.

The district court judge almost certainly got it right:

In her ruling Tuesday, Chutkan said Trump failed to identify any “injury to privacy, property, or otherwise that he personally will suffer” from the production of records.

As for the presidency, the judge quoted a landmark 1977 Supreme Court ruling saying that executive privilege serves the republic, not any individual. Chutkan noted that former presidents waived executive privilege when dealing with matters of “grave national importance,” including the Watergate break-in of Democratic national headquarters by Richard M. Nixon’s 1972 reelection campaign, the arms-for-hostages Iran-contra affair under Ronald Reagan, and the 9/11 terrorist attacks on New York City and the Pentagon during George W. Bush’s presidency.

“The incumbent President — not a former president — is best positioned to evaluate the long-term interests of the executive branch and to balance the benefits of disclosure against any effect on the ability of future executive branch advisers to provide full and frank advice,” Chutkan said.

Trump’s assertion of executive privilege “is outweighed by President Biden’s decision not to uphold the privilege,” Chutkan wrote, adding, “He [Trump] retains the right to assert that his records are privileged, but the incumbent President ‘is not constitutionally obliged to honor’ that assertion.”

I would be shocked if the Supreme Court, even with three Trump appointees and only three Democrats among its members, overturned this precedent. It’s imperfect, as it does potentially lead to cross-partisan score-settling, but President of all parties tend to be very protective, indeed, of the prerogatives of the office.

FILED UNDER: Donald Trump, Law and the Courts, Presidency, US Politics
James Joyner
About James Joyner
James Joyner is Professor and Department Head of Security Studies at Marine Corps University's Command and Staff College and a nonresident senior fellow at the Scowcroft Center for Strategy and Security at the Atlantic Council. He's a former Army officer and Desert Storm vet. Views expressed here are his own. Follow James on Twitter @DrJJoyner.

Comments

  1. Tony W says:

    Executive privilege needs to convey to the current executive – full stop.

    It is Mr. Biden who is charged with the security and leadership of the country, and his choice as to what will further those goals. If Biden determines that the release of the materials will help the country and his political goals, then that needs to be honored.

    Certainly, Mr. Biden knows that his documents might be relevant to a future administration’s investigation if he is accused of wrongdoing. But that’s likely not a factor because he’s not a corrupt grifter who is leveraging the powers of the presidency for personal gain.

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  2. mattbernius says:

    I would be shocked if the Supreme Court, even with three Trump appointees and only three Democrats among its members, overturned this precedent.

    It’s unlikely to get that far. The legal analysis I’ve read/heard* is that the Supreme Court would be unlikely to take up this issue as there isn’t a new question here. However, we should expect that this will be appealed one more time to the full Court of Appeals (versus the 3 Judge Panel). TBD if they opt to take it up.

    I also expect a pretty speedy decision after Nov 30th.

    * Again I highly recommend “All the Presidents’ Lawyers” for analysis on these issues. Also the Lawfare podcast is a great option as well (but typically has far fewer jokes and swears).

    1
  3. drj says:

    The point of executive privilege, after all, is to allow Presidents and their staffs to communicate openly and freely without fear that said communications will be made public.

    This framing fundamentally misunderstands the issue.

    Executive privilege is derived from the separation of powers as defined in the Constitution.

    In the US, executive branch and legislative branch are independently elected, meaning that they each have a separate electoral mandate. From this follows that the legislative branch doesn’t automatically get to overrule the executive branch (as would be the case in parliamentary systems).

    In short, both the legislative branch and executive branch have Constitutional rights; and sometimes these rights conflict. The doctrine of executive privilege offers a way to resolve such conflicts between different branches of government, each with its own electoral mandate.

    In this case, the executive and legislative branch are on the same page. Thus, there is zero Constitutional basis to invoke executive privilege, which means that this:

    If they’re subject to subpoena less than a year out of office, there’s certainly a chilling effect.

    …is nothing but a red herring.

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  4. James Joyner says:

    @drj:

    Executive privilege is derived from the separation of powers as defined in the Constitution.

    We don’t disagree. But protection of internal communications has long been understood to be a major basis. This from the US Congress’ page on the matter:

    Presidential communications, the Nixon Court said, have a presumptive privilege. The privilege is fundamental to the operation of government and inextricably rooted in the separation of powers under the Constitution. The operation of government is furthered by the protection accorded communications between high government officials and those who advise and assist them in the performance of their duties. A President and those who assist him must be free to explore alternatives in the process of shaping policies and making decisions and to do so in a way many would be unwilling to express except privately. The separation of powers basis derives from the conferral upon each of the branches of the Federal Government of powers to be exercised by each of them in great measure independent of the other branches. The confidentiality of presidential conversations flows then from the effectuation of enumerated powers.26
    However, the Court continued, the privilege is not absolute. The federal courts have the power to construe and delineate claims arising under express and implied powers. Deference is owed the constitutional decisions of the other branches, but it is the function of the courts to exercise the judicial power, to say what the law is. The Judicial Branch has the obligation to do justice in criminal prosecutions, which involves the employment of an adversary system of criminal justice in which all the probative facts, save those clearly privileged, are to be made available. Thus, although the President’s claim of privilege is entitled to deference, the courts must balance two sets of interests when the claim depends solely on a broad, undifferentiated claim of confidentiality.

    In this case we must weigh the importance of the general privilege of confidentiality of presidential communications in performance of his responsibilities against the inroads of such a privilege on the fair administration of criminal justice. The interest in preserving confidentiality is weighty indeed and entitled to great respect. However we cannot conclude that advisers will be moved to temper the candor of their remarks by the infrequent occasions of disclosure because of the possibility that such conversations will be called for in the context of a criminal prosecution.”

    In this case, the executive and legislative branch are on the same page. Thus, there is zero Constitutional basis to invoke executive privilege….

    But we really have not tested whether a former President is entitled to protection for his communications in office. Again, I think the 1977 precedent likely to stand. But this is a rare time when Trump’s lawyers have something of a point.

    3
  5. drj says:

    @James Joyner:

    Presidential communications, the Nixon Court said…

    The Nixon precedent is irrelevant.

    This was SCOTUS ruling that a sitting President was not allowed to use the claim of executive privilege against a Congressional “subpoena essential to enforcement of criminal statutes.”

    In short, SCOTUS sided with one branch of government against another.

    In the present case, however, there is simply no conflict whatsoever between two coequal branches of government.

    There is really nothing to resolve.

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  6. Kathy says:

    A ruling against the putsch leader would completely stymie the next administration which plots a coup or other forms of treason.

    Can we live with that?

    1
  7. drj says:

    @James Joyner:

    What you are essentially arguing is that there might be a chance that former Presidents can bind their successors in perpetuity.

    That’s just silly.

    (After all, executive privilege is based on being/representing a branch of government, not on having certain individual rights.)

    4
  8. Joe says:

    Consistent with drj‘s point, I would say a former president does not have standing to make demands on the current administration. If the current administration and the current Congress are in agreement, there is no dispute.

    5
  9. MarkedMan says:

    . I think the ruling will and should go against Trump but the optics of an all-Democratic panel will just further politicize and thus delegitimize the judiciary.

    While I agree with the sentiment, I suspect you will also agree with me that the ship has sailed. I have zero faith in any judge or any other public official appointed by Trump, and little respect for any judge appointed by a Republican since the takeover of Republican judicial nominations by the billionaire owned Federalist Society. These judges are groomed for a decade or more. They know they cannot advance in Republican controlled states unless they toe the line. The idea that they maintain their independence through that is a farce.

    6
  10. Scott F. says:

    From the lower court case:

    The order came after U.S. District Judge Tanya S. Chutkan of Washington on Tuesday cleared the way for handover of documents to a House investigative committee, ruling that an ex-president’s claim to a residual right to withhold records from Congress after leaving office does not continue in perpetuity.

    So the judge is saying that the only way for a president to resolve all concern that their communications might ever be publicly released to meet a political objective, they would need to never leave office. Well, Trump should have taken some actions to keep himself in office after he lost in November, if he wanted to continue to withhold information.

  11. mattbernius says:

    So, I don’t love this. I think the ruling will and should go against Trump but the optics of an all-Democratic panel will just further politicize and thus delegitimize the judiciary.

    Just to be clear the selection of jurists for the 3-panel review is more or less random. I also expect the concerns about appearing partisan is why, regardless of the result, the entire court of appeals is likely to take up this case.

  12. gVOR08 says:

    I’ll repeat a question I asked a week ago. We refrained from prosecuting Nixon because he resigned (someone reminded me he got out of town one step ahead of the sheriff and wasn’t actually impeached.) We only prosecuted underlings for Iran-Contra because Reagan was so lovable, and obviously a little gahgah. We didn’t go after W for torturing prisoners. I don’t know why. And is he still avoiding foreign travel for fear of arrest? And now we seem awfully reluctant to go after Trump and his minions.

    Can anybody identify significant, credible possible charges against an ex Dem prez? This seems to be a one way deal. Do we want a Prez Cruz, or Hawley, or DeSantis without fear of legal constraint?

    5
  13. Tony W says:

    @barbintheboonies: Opinions without facts won’t get you far here.

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  14. Kathy says:

    @barbintheboonies:

    I’m sure the orange turd did not give us the Obama economy.

    12
  15. mattbernius says:

    @barbintheboonies:
    Wowza, someone rolled up on the grump side of the bed this morning and after months of silence decided to start hate posting.

    I hope you find a way to work through whatever anger problems you seem to have that keep you hate-reading this site.

    Also, from what I can tell, you appear to be rather pro-Trump riots… which seems a little antithetical to the position you staked out yesterday.

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  16. wr says:

    JJ: ” I think the ruling will and should go against Trump but the optics of an all-Democratic panel will just further politicize and thus delegitimize the judiciary.”

    That’s odd. I can’t seem to find all those posts where you worried that the optics of an all-Republican panel on the 5th circuit overruling Democratic presidents on immigration and Obamacare and all the rest would just further politicize and thus delegitimize the judiciary.

    5
  17. wr says:

    @barbintheboonies: I guess rehab didn’t take this time.

    3
  18. Scott says:

    @barbintheboonies:

    I know its pointless to use facts but here you go. Relevance to executive privilege is what?

    Nope. Not the best economy.

    US GDP Growth rate
    2020 -3.49%
    2019 2.16%
    2018 3.00%
    2017 2.33%
    2016 1.71%
    2015 3.08%
    2014 2.53%
    2013 1.84%
    2012 2.25%
    2011 1.55%
    2010 2.56%
    2009 -2.54%

    1
  19. Mu Yixiao says:

    @Scott:

    US GDP Growth rate
    2020 -3.49%

    Biden takes oath of office: Jan. 20th 2021

    Ooops!

  20. James Joyner says:

    @barbintheboonies:

    Biden is a moron, and has no clue what the Hell is going on. He just is propped up every few days to mumble a few words to keep the people who didn’t vote for him pissed off.

    Please refrain from making idiotic, off-topic comments.

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  21. CSK says:

    @barbintheboonies:
    Barb, you have to know that Trump is an absolute pig of a human being. Anyone who’s read about him for decades, as I have, is fully aware that he despises the so-called “little people.” He’s not the champion of the masses. He’s a failed social climber (and failed businessman) who’s desperate for revenge against the Manhattan haut monde who scorned him.

    4
  22. Kathy says:

    @James Joyner:

    James, you ask the impossible.

    1
  23. James Joyner says:

    @drj:

    What you are essentially arguing is that there might be a chance that former Presidents can bind their successors in perpetuity.

    Again, I think the essence of the 1977 ruling is right: the privilege applies to the office, not the individual. But we haven’t tested yet whether a former President has any right to control the release of their papers from the time they were in office. I think that’s an interesting question. But, even if they did, the Nixon rulings would suggest that the public interest with respect to a criminal proceeding would outweigh any privacy interest.

    2
  24. a country lawyer says:

    @barbintheboonies: Another impartial, well reasoned and thoroughly documented response. Keef would be proud.

    4
  25. James Joyner says:

    @wr:

    I can’t seem to find all those posts where you worried that the optics of an all-Republican panel on the 5th circuit overruling Democratic presidents on immigration and Obamacare and all the rest would just further politicize and thus delegitimize the judiciary.

    Sigh. First, I can’t offhand recall any posts I wrote about those rulings, let alone ones where the report I was citing specifically pointed to the partisan composition of the panel. Second, we’re simply in a different moment now with respect to the legitimacy of the courts. Tensions were high in the Obama era but they’re exponentially more so now.

    4
  26. Scott says:

    @James Joyner:

    right to control the release of their papers from the time they were in office.

    I know we’re speaking commonly and not legally but it should be pointed out that these are not Trump’s papers but belong to the Government. Everything I have produces on Government time and equipment does not and never has belonged to me.

    I doubt that Trump understands or believes that fact.

    9
  27. CSK says:

    @Scott:
    I recall reading that Trump routinely ripped up any document, letters, memos, briefings, etc. that came to his desk, and a two-man team would go into the office each evening to empty the wastebasket and patiently piece all the papers back together.

    Destroying all records must have been his customary way of doing business, and with the kind of business he did, no wonder.

    6
  28. Gustopher says:

    @barbintheboonies: I’m curious — what are your top three news sources?

    I ask, because I see the same things from my brothers, and they avoid answering the question.

    1
  29. SC_Birdflyte says:

    @barbintheboonies: Are you looking in a mirror?

  30. EddieInCA says:

    @Gustopher:

    That one is easy.

    Fox
    Newsmax
    OAN

    In that order.

    1
  31. CSK says:

    @EddieInCA:
    Don’t forget The Gateway Pundit and The Conservative Tree House.

    And you should be aware that Fox is, and has been for some time, a communist conspiracy.

    1
  32. Chip Daniels says:

    @James Joyner:
    Is there any executive in government to whom this shouldn’t apply?
    Cabinet secretaries, Defense officials…?

    Could any of the use the same logic to hide their papers from public view?

  33. wr says:

    @James Joyner: “Second, we’re simply in a different moment now with respect to the legitimacy of the courts. Tensions were high in the Obama era but they’re exponentially more so now.”

    I’m not talking about the Obama era. I’m talking about the last few months. Remember when the 5th circuit decided that Biden was no longer in charge of immigration policy, and he had to stick with Trump’s “remain in Mexico” policy? That was a fairly outrageous decision by a group of hardcore reactionary Republicans. It was also unprecedented. But that kind of decision never seems to put the courts’ legitimacy into question.

    3
  34. James Joyner says:

    @wr:

    Biden was no longer in charge of immigration policy, and he had to stick with Trump’s “remain in Mexico” policy? That was a fairly outrageous decision by a group of hardcore reactionary Republicans. It was also unprecedented.

    I’m pretty sure no court ever said that. Trump had all manner of EOs overturning Obama EOs overturned on the ground that he failed to follow the Administrative Procedures Act. I suspect this was that.

  35. matt bernius says:

    @James Joyner:

    Trump had all manner of EOs overturning Obama EOs overturned on the ground that he failed to follow the Administrative Procedures Act. I suspect this was that.

    That was, in fact, exactly it.

    https://www.jurist.org/news/2021/08/supreme-court-rejects-biden-administration-request-to-stay-remain-in-mexico-policy/

    3
  36. just nutha says:

    @EddieInCA: That’s interesting. I would have though reverse order.

  37. gVOR08 says:

    @gVOR08: I asked earlier,

    Can anybody identify significant, credible possible charges against an ex Dem prez?

    Nothing so far. Anybody?

  38. OzarkHillbilly says:

    @gVOR08: Clinton: Being a Democrat in the White House.
    Obama: Being a black Democrat in the White House.

    2
  39. Matt says:

    @OzarkHillbilly: Indeed despite multiple special prosecutors leading up multiple thorough investigations the one thing they found on Clinton was an unrelated accidental discovery that we all know so well..

  40. gVOR08 says:

    Every silver cloud has a black lining. DOJ indicted Bannon on two counts of Contempt of Congress. They’ve drawn a Trump appointed judge who clerked for Clarence Thomas.

    2
  41. Neil Hudelson says:

    @SC_Birdflyte:

    If I recall correctly, barb was a fairly regular commentor at Stormfront when that existed. So you can imagine what her “news” sources are.