Former President Trump won a victory this week in keeping documents from the Jan. 6 panel investigating the Capitol riot, but it’s far from clear his novel legal arguments about executive privilege will win in the long run.
A three-judge panel on the Washington, D.C., Circuit Court of Appeals gave Trump a reprieve on Thursday, temporarily delaying the release of his documents while it hears the former president’s legal challenge.
That followed a decision by U.S. District Judge Tanya Chutkan on Tuesday denying Trump’s effort to challenge the select committee’s document request to the National Archives.
She ruled that even though former presidents have some authority to assert executive privilege, Trump cannot stop Congress from obtaining records over which the sitting president has declined to assert it.
Next up for Trump’s legal team is persuading a federal appeals court, and then likely the Supreme Court, of its case: that Trump as a former president can prevent his successor, President Biden, from turning over White House records to Congress. Biden is not backing Trump’s executive privilege claims.
Trump’s legal team argues that the release of the documents would violate his executive privilege and that there is no valid legislative purpose behind the select committee’s request. It claims that the panel is seeking records to harass and damage Trump politically.
But some legal experts believe that Trump faces narrow odds that he’ll prevail.
Executive privilege is not an absolute right to withhold internal records but a qualified right that can be overridden by a compelling enough need for information.
Laurent Sacharoff, a law professor at the University of Arkansas who has studied executive privilege claims from former presidents, believes that Congress has such a compelling and obvious need to investigate what led to the attack on the Capitol that Trump will have a hard time convincing the higher courts to keep his records from the committee even if he can claim that they are privileged.
“The select committee is investigating an attack on Congress and is seeking relevant documents, and even if the former president can assert executive privilege, he must certainly lose when, one, the documents are so important and, two, the current president wants them to be turned over,” Sacharoff said.
“Congress’s need for the information both as a practical matter and as a structural matter, that they’re an equal branch of government that’s protecting literally its own existence, would outweigh any assertion of executive privilege even by a sitting president in my view,” he added.
Sacharoff has argued that former presidents should not be allowed to claim executive privilege in any context because they no longer have a duty to only invoke it in the public interest.
The Supreme Court ruled that former presidents enjoy some rights to executive privilege in a 1977 case called Nixon v. GSA, when it rejected former President Nixon’s lawsuit against a new federal law that would require him to turn over his White House recordings and other records to the National Archives.
Though Nixon had the right to assert executive privilege, the court ruled, the law did not violate that privilege, in part because the sitting president at the time, Gerald Ford, had signed the law and “the claims of Presidential privilege clearly must yield to the important congressional purposes of preserving the materials and maintaining access to them for lawful governmental and historical purposes.”
Erica Newland, an attorney at the nonprofit Protect Democracy who helped file an amicus brief supporting the select committee on behalf of a bipartisan group of former lawmakers, says that Trump has not satisfied the requirements for asserting executive privilege that the Supreme Court laid out in its GSA decision.
Newland argues that, even if he had, Congress’s need for the records as part of its Jan. 6 investigation would be even more compelling than its need to archive the records of a president who resigned in disgrace.
“It’s hard to imagine a more critical job for Congress than figuring out where the vulnerabilities are in the peaceful transfer of power, which is our national inheritance, and how to shore up those vulnerabilities,” she said.
Newland added that it’s hard for her to see how Trump can win the case, even if it comes before a conservative Supreme Court.
“One of the core principles that this court has abided by is the idea that we have one person in whom all of the executive power is vested, and that is the president,” Newland said. “And so the idea that a former president who is in no way accountable to the American people … would get to make a determination basically on behalf of the American people about how government documents get shared with Congress — it doesn’t just refute it; it’s absurd on its face.
“It’s giving a private citizen control over government documents in a way that is anathema to the first principles that this conservative majority has applied again and again and again in cases over the years,” she said.
But even if Trump is unable to persuade the higher courts on the merits of his arguments, he could succeed at hampering the select committee’s investigation by dragging out the case amid an approaching midterm election cycle.
David Janovsky, an analyst with the Project on Government Oversight’s Constitution Project, says that higher courts need to continue to handle the case with urgency in order to allow the select committee a fair chance at carrying out its investigation.
“Delay is not neutral in cases like these, and fast for the courts isn’t necessarily fast for Congress,” Janovsky said. “We’re less than a year away from the midterm elections, and that means this Congress is only going to be in office for another 14 months. So I think if the courts don’t move quickly they will rule without ruling and that is just not appropriate and that doesn’t serve the public’s interest.”