Trump, Jan. 6 panel lawyers head to court in executive privilege fight

A federal judge for the first time on Thursday will hear arguments over whether lawmakers on the Jan. 6 committee can be granted executive branch records in its investigation into what role the former Trump administration played in stoking the Capitol riot.

The case presents unsettled legal questions regarding the scope of Congress’s investigative authority and a former president’s ability to shield information from the legislative branch.

Trump’s lawyers are asking a federal judge for a preliminary injunction that would block the National Archives and Records Administration (NARA) from handing over scores of documents that the former president argues are protected by his claims of executive privilege.

After the panel requested the records in August, President Biden said that the White House would not assert any privilege claims over the documents, allowing the Archives to hand them over to lawmakers.

Trump’s lawyers are arguing that the 1978 Presidential Records Act and the Constitution both weigh in favor of shielding the documents from Congress, and that the committee’s request is improper because it lacks a legislative purpose. 

The committee has argued its purpose is clear: the review of the attack will help determine what is necessary to prevent anything similar from happening again. 

Harry Litman, a former U.S. attorney and deputy assistant attorney general during the Clinton administration, believes Trump’s strategy in court is to convince the judge to throw out the committee’s request on the grounds that it lacks a legislative purpose. If that fails, the strategy may be to stall the case and the investigation by having the court review the records to determine which documents are privileged.

“As I read his reply he’s really going for a delay strategy,” said Litman, who now hosts the Talking Feds podcast. “He’s trying to argue that the judge needs to examine each and every document for executive privilege, and that would take months.”

Kel McClanahan, an adjunct law professor at George Washington University who filed an amicus brief in the case supporting the select committee, says that Trump will prevail if he can convince the courts that the document requests lack a valid purpose.

Barring that, McClanahan says, Trump’s lawyers will have to persuade the courts that the former president can assert executive privilege, which would require a judge to weigh that privilege against the committee’s need for the records.

“Both NARA and the committee have to argue that there is a legitimate legislative purpose and that even if [Trump is allowed to bring the suit], the need is so great because of the insurrection and the potential for criminal misconduct, that they win the balancing test,” McClanahan said.

Court filings from over the weekend offer the clearest indication yet of what Trump is seeking to shield from the public and how the government plans to fight his executive privilege claims.

The sweeping request from the Jan. 6 committee asks for records not only from Trump’s family members, but a who’s who of presidential aides as well as informal advisers outside the White House.

The Trump team is seeking to block the release of records involving his former chief of staff Mark Meadows, his press secretary Kayleigh McEnany and aide Stephen Miller.  

He also seeks to block release of the White House Daily Diary, which the National Archives described as “a chronological record of the President’s movements, phone calls, trips, briefings, meetings, and activities” — making it a potential goldmine for determining who Trump spoke to that day and when.

A filing from National Archives White House liaison division director John Laster revealed that Trump is fighting to withhold more than 700 pages of documents from the trove, many of which would offer a detailed picture of his movements and conversations throughout the day. 

In addition to daily diaries, Laster wrote that Trump is seeking to assert privilege over White House visitor logs, activity logs, call logs and switchboard information showing calls to both the president and vice president on Jan. 6, which totals 30 pages. Privilege is also being sought over drafts of speeches, remarks and any correspondence relating to Jan. 6 along with three handwritten notes by Meadows concerning that day.

Unless the courts intervene, NARA intends to hand the documents over on Nov. 12.

Trump’s lawyers argue that the committee’s request is overly broad and lacks a valid legislative purpose that would justify overriding the former president’s interest in keeping the documents confidential.

“Congressional committees do not have the broad and boundless authority of inquisition; their investigatory powers are confined by their legislative function and the legitimate Constitutional prerogatives of their co-equal branches of government,” Trump’s lawyers said in a filing last month.

“The Committee’s request amounts to nothing less than a vexatious fishing expedition designed to unconstitutionally target President Trump and those who served in his administration. Our laws do not permit such an impulsive action against a former President and his close advisors.”

In a court filing submitted Tuesday night, the former president’s legal team claimed that he has been cleared of any wrongdoing by federal law enforcement and a Senate committee investigation, though the FBI is still probing the Jan. 6 attack and the Senate report his lawyers cited was focused on the security and law enforcement response to the riot.

“The Committee’s breathless innuendo and conjecture cannot sustain the broad scope of their request when there is no evidence of wrongdoing by President Trump and those in the White House,” Trump’s lawyers wrote. 

Lawyers for the Jan. 6 committee have pushed back against Trump’s claims, arguing that his efforts to shield the documents are “unprecedented and deeply flawed.”

“The Select Committee’s request is squarely within its jurisdiction and driven by a clear legislative purpose: to understand the facts and causes surrounding the January 6 attack to develop legislation and other measures that will protect our Nation from a similar assault in the future,” the committee’s lawyers wrote in a court filing last month. “The Select Committee has reasonably concluded that it needs the documents of the then-President who helped foment the breakdown in the rule of law.”

McClanahan said he believes Trump has only a “negligible chance” to ultimately prevail in the case.

“I think Trump has a very difficult path to success,” he said. “First he has to show that he is able to assert a privilege, then he has to show Congress has insufficient needs for the records.”

“Of course Congress has a need to learn what led to the invasion of the Capitol,” McClanahan added. “So he may win one particular argument and still lose the case.”

While the committee has largely dismissed Trump’s executive privilege claims, Litman said the case history is more complicated, with courts in some cases instances siding with presidents seeking to withhold records even after leaving office.

“The idea that a former president can assert executive privilege is stronger under the law than many Trump antagonists want to make it,” he said.

But Litman said Trump’s emphasis on the legislative aspect show’s he’s hedging when it comes to his arguments on executive privilege.

“Trump is pushing really hard on the notion that there’s no legitimate legislative function here,” Litman said, “which could be a sign that he understands that his executive privilege claim is a likely loser.”