He incited an insurrection but former President Donald Trump, in his ongoing bid to keep records sought by the Jan. 6 committee out of investigators’ hands, argued Tuesday that their release would irreparably harm the powers of the presidency and the Constitution, and amount to an “inquisition” led by Congress.
In a 68-page brief filed at the U.S. Court of Appeals for the District of Columbia, Trump’s attorney Jessie Binnall lashed out at a lower court’s recent ruling that refused to grant Trump’s motion to shroud the documents.
Lawmakers on the Jan. 6 committee contend the information they are after is key to understanding exactly what happened during and before the attack on the U.S. Capitol, and the attempt to stop the certification of the 2020 election results.
They also maintain that this information could effectively prevent another similar event from occurring ever again.
But for Trump, the hand-off of hundreds upon hundreds of pages from the National Archives to the select committee is an affront that threatens “enormous consequences” that could “forever change” the dynamics of power in the United States.
“It is naïve to assume that the fallout will be limited to President Trump or the events of Jan. 6, 2021. Every Congress will point to some unprecedented thing about ‘this President’ to justify a request for presidential records,” Binnall wrote.
He continued: “In these hyperpartisan times, Congress will increasingly and inevitably use this new weapon to perpetually harass its political rival.”
The core of Trump’s argument on Tuesday is a familiar one and one he used, at least in part, in the 2020 Supreme Court case Trump v. Mazars USA, LLP.
In that case, where the U.S. House of Representatives sought Trump’s tax returns, the delineation between executive privilege and the separation of powers was put to the test. The high court ultimately found that when resolving legislative and executive branch disputes, a request for private information from the executive means that Congress must be using that information to fulfill its original purpose: to legislate.
But Mazars did not fully answer questions over claims to executive privilege. This case is unique in that respect.
Trump insists that the committee is not requesting the records for any legislative purpose, but rather to criminally investigate and try him and to use him as a sort of guinea pig to see precisely how far congressional powers can go.
“The President’s unique constitutional positions means that Congress may not look to him as a ‘case study’ for general legislation. [Jan. 6 Committee Chairman Bennie Thompson’s] request openly flouts this rule by admitting that the Committee’s request seeks to ‘identify lessons learned and recommend laws, policies and procedures, rules or regulations necessary… in the future,’ effectively treating President Trump as a test subject,” Binnall wrote.
When U.S. District Judge Tanya Chutkan denied Trump’s previous attempt to block the National Archives from transmitting the records to Congress, she dressed the 45th president down. Chutkan ruled that while Trump was welcome to invoke executive privilege, as was his right, whatever remnants of power might be afforded him as a onetime president did not mean his powers were absolute.
Chutkan found he could not override in full the committee’s power to investigate, and especially so when incumbent President Joe Biden did not claim executive privilege over the sensitive documents.
“His position that he may override the express will of the executive branch appears to be premised on the notion that his executive power ‘exists in perpetuity,’” Chutkan wrote of Trump. “But presidents are not kings, and the plaintiff is not president.”
Trump’s attorney was quick to retort Tuesday: “President’s are not kings, yet congressional power is not limitless, regardless of presidential dictate.”
And in a jab at President Biden, Binnall continued: “When the Supreme Court noted that executive privilege exists for the benefit of the Republic, it meant the People’s interest in a functioning government, not the whims of the sitting President who may be unable see past his own political considerations.”
Trump, he added, is not attempting to forgo disclosure of the records because of “some wrongdoing, as such wrongdoing never occurred,” Binnall wrote.
“Rather, the request’s abject failure to identify proposed legislation and why the president’s information will advance such legislation are evidence that the committee’s request has an improper law enforcement purpose that its fundamental nature is plainly for law enforcement purposes,” he said.
Considering Tuesday’s appeal, Chad Oldfather, a professor of law at Marquette University Law School, told Daily Kos in an email Tuesday that it is “difficult to predict precisely how this will come out because this is an area where there’s not a lot of law in the sense of past judicial decisions that can be drawn on to provide precise guidance.”
“The reason for that is that for the most part, in the past, Congress and the President were able to work these things out without the need to resort to the courts. And one of the reasons they were able to work things out was that both sides to such requests shared an understanding that the other side was acting in good faith,” Marquette wrote. “That sort of understanding is, of course, nowhere to be found these days.”
Oldfather also remarked on the irony of arguments presented to the appeals court.
“One of the Trump team arguments is that allowing Congress to succeed with such a broad request would shift the balance of power too much. But the same can be said about the over-aggressive claims of executive privilege, which the Trump administration has consistently made. Concerns about overreach on both sides are real, and the trick for a court is to figure out how to draw a principled line,” Oldfather said.
Principles aside, Trump, for now, rigorously maintains that the committee’s requests are “supercilious.”
“If this Court were to accept the rationale of the district court, it would lead to the erosion and eventual destruction both of the separation of powers concerns underlying Mazars and executive privilege. In their place, Congress would be vested with an unprecedented—and unconstitutional—power of inquisition,” Binall wrote.
And as he has so often done, Trump appeared ready yet again to rely on delay as a legal tactic.
“Unlike the irreparable harm President Trump will suffer absent interim relief, defendants would suffer no harm by delaying production while the parties litigate the request’s validity. There will not be another Presidential transition for more than three years; Congress has time to allow the courts to consider this expedited appeal while it continues to legislate,” Binnall wrote.
Oral arguments are slated at the appeals court for Nov. 30. At that time, judges will consider the question of whether or not to keep the temporary block now applied to the National Archives in place, even as Trump’s claims of executive privilege are reviewed.
If the appeals court decides to release that hold, Trump will likely file another appeal, kicking the case up to the U.S. Supreme Court.
A representative for the Jan. 6 committee did not immediately respond to request for comment on Tuesday.