On Thursday, the U.S. Court of Appeals in Washington, D.C. issued a ruling that reaffirms what a district court said last month: Donald Trump has no right to prevent the House Select Committee on Jan. 6 from gaining access to a collection of documents held by the National Archives.
After losing in federal district court, Trump appealed. The case was heard by a three-judge panel in the Columbia circuit. The unanimous ruling, written by Judge Patricia Millett, who was appointed by President Obama, could not be more emphatic in pushing back against Trump’s attempt to claim a kind of post-executive privilege. The ruling emphasizes that the select committee has a “sound basis” for the request; reiterates that it’s up to President Joe Biden, not Trump, to determine what documents need to be protected; and emphasizes the importance of the documents in dealing with “the most significant assault on the Capitol since the War of 1812.”
The ruling makes it clear that not only is the appeals court rejecting Trump’s appeal—it doesn’t think he has a chance in any other court, that the limits President Biden has placed on executive privilege were “carefully reasoned,” that Congress has a “uniquely vital interest” in getting access to these documents, and there’s no other source of this information. When it comes to the claims Trump made in attempting to block the release, the court was completely dismissive.
The appeals court gave Trump two weeks to take action before the documents would be handed over to the House. Expect Trump to use that time to take his claims before the Supreme Court.
When the select committee issued a wide-ranging request for documents back in August, it included a note to the National Archives seeking “all documents and communications” from the Trump White House related to Jan. 6. Trump immediately responded by claiming these documents were protected by executive privilege. However, this marks the third time courts have reminded Trump that privilege doesn’t attach to former office-holders. Instead it was President Biden who should determine whether the material should be available, and after a brief review, Biden provided an answer: Absolutely.
This ruling at the appeals court level doesn’t just reject Trump’s arguments, but explicitly states that the court feels Trump is unlikely to succeed in any further appeal. Any time a judge feels compelled to quote Benjamin Franklin, one side of the argument is going to have a bad day.
Benjamin Franklin said, at the founding, that we have “[a] Republic”—“if [we] can keep it.” The events of January 6th exposed the fragility of those democratic institutions and traditions that we had perhaps come to take for granted. 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.
Trump has lost repeatedly, and will very likely lose again, even before this Supreme Court. As each response to his case has demonstrated, there is neither any historical precedent nor compelling national interest supporting Trump’s claims. In most instances, a loss at the district level followed by a 3-0 ruling at the appeals court level would make it likely that the Supreme Court might refuse to take up the case.
However, Trump has so far succeeded in his primary goal: delay. And it seems entirely possible that four members of the current Supreme Court might join him at least as far as helping him extend that delay.