On Thursday, Donald Trump lost his latest legal battle seeking to block information from the House committee investigating the Jan. 6 attack. In a unanimous opinion written by Judge Patricia Millett, a three-judge panel of the U.S. Court of Appeals for the D.C. Circuit ruled that it would not grant the former president an injunction blocking the National Archives from turning over White House documents surrounding the events of Jan. 6, as required by law.
Trump had contested President Joe Biden’s waiver of executive privilege over the materials. But Millett, joined by Judge Ketanji Brown Jackson and Judge Robert L. Wilkins, ruled that Trump had not shown that the presidency would be injured by the release of key documents, even though the previous president objected.
In a thorough 68-page opinion, the court determined that Trump had failed “even to allege, let alone demonstrate, any particularized harm that would arise from disclosure, any distinct and superseding interest in confidentiality attached to these particular documents, lack of relevance, or any other reasoned justification for withholding the documents.”
“Former President Trump likewise has failed to establish irreparable harm, and the balance of interests and equities weigh decisively in favor of disclosure,” Millett wrote. “For those reasons, we affirm the district court’s judgment denying a preliminary injunction as to those documents in the Archivist’s first three tranches over which President Biden has determined that a claim of executive privilege is not justified.”
The ruling, which drew on precedent that granted greater weight to claims of executive privilege by the current president than the former, is a vindication of U.S. District Judge Tanya S. Chutkan, who also rejected Trump’s request for a preliminary injunction. The panel did allow a temporary administrative injunction against the disclosure of the documents to remain in effect for Trump to appeal to the Supreme Court.
The D.C. Circuit’s ruling was direct, forceful, and comprehensive in deferring to the judgments of both Congress and the current president that the requested information about the worst attack on the seat of government since the War of 1812 is necessary for the House of Representatives to do its work—and for the nation’s democracy to function.
“A court would be hard-pressed under these circumstances to tell the President that he has miscalculated the interests of the United States, and to start an interbranch conflict that the President and Congress have averted,” Millett wrote.
For good measure, the panel also noted that even if it accepted that the courts should second-guess the sitting president and the House of Representatives on behalf of a former president who is now a private citizen, Trump’s request still would fail on its own terms.
“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,” Millett explained.
During last month’s oral arguments, one of the panel’s principal concerns was that Trump was asking the court to block production of the documents without actually articulating why. He raised only a very general claim that it would be in the best interests of the executive branch—a claim that the current president rejected. As Millett wrote:
[Trump] has not identified any specific countervailing need for confidentiality tied to the documents at issue, beyond their being presidential communications. Neither has he presented arguments that grapple with the substance of President Biden’s and Congress’s weighty judgments. Nor has he made even a preliminary showing that the content of any particular document lacks relevance to the Committee’s investigation. He offers instead only a grab-bag of objections that simply assert without elaboration his superior assessment of Executive Branch interests, insists that Congress and the Committee have no legitimate legislative interest in an attack on the Capitol, and impugns the motives of President Biden and the House. That falls far short of meeting his burden and makes it impossible for this court to find any likelihood of success.
Further, the panel scoffed at the notion that the court must—at Trump’s behest and without any actual specific guidance as to what it’s looking for—go through each individual document to make its own determination about whether Trump’s or Biden’s view of executive privilege should win out.
“If what former President Trump means instead is that the court should hunt through the documents in an effort to espy important reasons why President Biden’s decision might be ill-advised, he gets the law backwards,” Millett wrote. “Having asserted the importance of confidentiality in these documents based on his expert viewpoint as the President during whose term they were created, former President Trump had the burden of articulating some compelling explanation for nondisclosure to the court. He cannot stand silent and leave it to the court to come up with arguments for him.”
The panel also recognized the significance of the Jan. 6 committee’s work as an important, historic endeavor. Finally, it acknowledged the possibility that Trump or other executive branch officials may have contributed to the disaster that day.
“The Committee is investigating a singular event in this nation’s history, in which there is a sufficient factual predicate for inferring that former President Trump and his advisors played a materially relevant role,” Millett wrote.
Millett closed with lofty language recalling Benjamin Franklin’s admonition that the Constitutional Convention had provided Americans “a Republic, if you can keep it” to emphasize that the “events of January 6th exposed the fragility of those democratic institutions and traditions that we had perhaps come to take for granted.”
Thursday’s decision, should it be affirmed by the Supreme Court, is also a devastating blow for witnesses who have sought to hide from subpoenaed testimony before the Jan. 6 committee. These witnesses include Steve Bannon, who has been charged by the Department of Justice with criminal contempt of Congress, and former White House chief of staff Mark Meadows, who is facing similar contempt charges after ending a cooperation deal with the committee and instead suing it. If the courts defer to Biden’s waiver of executive privilege over these documents, it stands to reason that they should also defer to his judgment that these witnesses should provide sworn testimony.
The documents in question include drafts of speeches concerning the events of Jan. 6, a draft executive order on election integrity, and handwritten notes concerning the events of Jan. 6 from Meadows himself.
