DC Circuit Temporarily Blocks Release of White House of January 6 Documents

A panel of the court will hear Trump’s challenge to the release of material on an expedited basis.

Yesterday, a three-judge panel of the U.S. Court of Appeals for the D.C. Circuit entered an administrative injunction temporarily blocking the National Archives from releasing materials to the House Committee investigating the events of January 6 and then-President Trump's attempt to retain power or alter the results of the 2020 election. The effect of this order is to delay disclosure of the contested documents so that the court may consider Trump's challenge to the district court decision rejecting the former President's privilege claims.

The court's brief order, entered on behalf of Judges Millett, Wilkins, and Jackson, also set an extremely expedited briefing schedule for the panel's consideration of Trump's privilege claims. Briefs are due next week, and oral argument will be heard on November 30.

Comments

[Sidney r finkel]

Tell us again where the 'Executive Privalege' section is in the Constitution.

Oh, we know, it's right after the section defining Qualified Immunity.

Finally, explain one more time why Trump is considered a conservative or why anyone calling themselves conservative would support him.

[Krychek_2]

Sidney, you are apparently unfamiliar with the concept of "destroying the village in order to save it," meaning saving it from the other side.

There are conservatives who are happy to drive the country over a cliff so long as we don't have single payer health care. Or a tax increase on the wealthy. Or anything Nancy Pelosi thinks is a good idea. Let the earth burn, let the heavens be destroyed, so long as it keeps the Democrats from governing.

[Michael P]

As opposed to destroying [executive privilege] to save it from [being used by Trump]?

[NOVA Lawyer]

Sunlight is the best disinfectant.

[Sidney r finkel]

Not for vampires, which may explain why the Trumper is so opposed to it.

[Moderation4ever]

Like the reply.

[Armchair Lawyer]

Meanwhile Democrats are trying to find ways to cut taxes on the top 1% in the upcoming bill....

[NOVA Lawyer]

Look, squirrel!

[Michael P]

Those sections are right after the section that grants the legislature the courtly power to issue subpoenas.

[bernard11]

So you mean all that GOP Benghazi BS was unconstitutional?

[grb]

Sidney r finkel : "Finally, explain one more time why Trump is considered a conservative or why anyone calling themselves conservative would support him"

Happy to oblige. From the birth of modern right-wing talk radio decades ago to trumpism today, today's "conservatism" has moved towards one clear end: Politics as consumer-oriented entertainment. When Limbaugh became popular, it was just a few hours each day of cartoon rage and hearty yucks paralleling reality.

With the birth of Fox News, that same service became available 24/7 - and the distinction between theater and real facts of politics began to blur. Since then we've had intermediate stages such as the faux-cowboy W Bush ("Decider") and Sarah Palin, but finally have arrived at final stage of right-wing evolution: The politician himself as reality-TV vaudeville act.

Trump may be a sleazy ignorant huckster buffoon, but his supporters can always count on him for a knee-slapp'n good time. And after all, what's governance compared to owning the libs? These days that's more important to right-types than any other thing. (this includes healthcare decisions).

[NOVA Lawyer]

Touche. Pretty accurate summation.

[Commenter_XY]

I have to confess, I am chuckling at the idea that having a hearing by 11/30 is considered expedited.

[Social Justice is neither]

You have to understand the intended impact is the '22 elections so from that perspective it is expedited.

[Patrick Henry, the 2nd]

So I guess that opinion wasn't well reasoned at all!!

If a court did its job, this would be done.

[mtkesq]

Or, given the highly important nature of the case, the panel figured the more prudent course would be to have breifing/argument/decision longer than one page per curiam. No matter what happens at Court of Appeals level someone is either going to ask for en banc or relief from the Supreme Court. More high quality opinions at the lower levels generally result in better jurisprudence at the Supreme Court level.

[Armchair Lawyer]

"For example, one of the Committee’s requests is for all documents and communications from April 1, 2020, through January 20, 2021, related to the 2020 presidential election, including forecasting, polling, or results, which were authored or presented by, or relate in any way to one of five specific individuals who the Committee presumably believes were involved in strategies to delay, halt, or otherwise impede the electoral count"

"Another similarly broad request seeks all documents and communications concerning the 2020 election and relating to any of one of forty named individuals who the Committee presumably believes participated in the recruitment, planning,
and preparations for rallies on days leading up to and including January 6"

I see...

In other words, Democrats want basically all of Trump's 2020 election strategy notes. On a committee without a single Republican-appointed member.

But it's for "Legislative purposes"...they promise.

[Alpheus W Drinkwater]

Does the term "legislative purposes" rule out all partisan purposes? Just idle curiosity, not defending these ridiculously broad requests. I suppose the strategy is to ask for way more than you think you are likely to get.

[David Nieporent]

The term legislative purposes requires only that it be about a subject about which they could legislate. It does not consider what their actual purposes are.

[Armchair Lawyer]

That's not quite accurate. Via Trump v Mazars, the following needs to be true.

"Most importantly, a congressional subpoena is valid only if it is “related to, and in furtherance of, a legitimate task of the Congress.” Id., at 187. The subpoena must serve a “valid legislative purpose.” Quinn v. United States, 349 U. S. 155, 161. Furthermore, Congress may not issue a subpoena for the purpose of “law enforcement,” because that power is assigned to the Executive and the Judiciary..

There's more that limits the power in the decision. Congress can legislate on just about everything. But Congress doesn't have unrestricted subpoena power.

[Armchair Lawyer]

"Does the term "legislative purposes" rule out all partisan purposes?"

No, if for no other reason than many items which are legitimate legislative purposes would also have a partisan component. Passing a law, say a tax cut bill or health care bill, often has a partisan component.

[Alpheus W Drinkwater]

Yeah, that seems right.

[Krychek_2]

And whose fault is it that there are no Republican appointed members on the committee?

[Michael P]

Isn't this the committee where Republicans nominated their members, and Nancy Pelosi refused to recognize or seat them?

[Armchair Lawyer]

Indeed, it is. At least some of them.

[Krychek_2]

Yes she did, for the same reason we don't hire holocaust deniers to teach European history, or flat earthers to teach earth science.

[Social Justice is neither]

So to answer your question, it is Pelosi's fault but you don't give a shit.

[Krychek_2]

No, Pelosi acted absolutely correctly. If you're the FBI, you don't hire Al Capone to investigate Al Capone.

[Formerly Known as Stash]

Hmmm. "Democrats want basically all of Trump's 2020 election strategy notes." That doesn't seem accurate. Campaign strategy is supposed to be run out of the campaign, and the campaign's records are not "presidential records" deposited with the Archivist.
More to the point, April 2020 was when Trump started saying that he would win the election hands down unless there was fraud. While I understand that the GOP presupposes Trump's omniscience and clairvoyance in the face of his historically low approval ratings and a highly energized opposition fresh from a huge mid-term victory (and later 60+ court losses coupled with sanctions against against attorneys bringing them) Congress is not required to adopt this article of faith. It could reasonably explore whether it was the beginning of a Plan B to stay in office regardless of official, certified votes. (It is also possible that it was just anticipatory sore-loserism in the face of bad internal polls, that led to blaming/firing his campaign manager a few months later.)
Inasmuch as the stated purpose is to legislate to prevent another attack such as January 6, it would be critical to determine whether the rioters were "acting alone" or in accordance with a plan, or a plan or course of conduct that recklessly precipitated the attack. E.g. do you simply criminalize murder to prevent lynching, or do you pass a KKK Act? One can imagine all sorts legislative remedies, from tightening the Hatch Act, limiting post-election campaign expenditures/fund-raising coordinated with outside groups, changing the Electoral Count Act, federalizing election standards or even criminalizing certain conspiracies to overturn/contest elections through fraud or sham litigation and any combination of the above.
But first you have to understand what happened, from soup to nuts. Or, at minimum, that is a reasonable position for Congress to take.

I also have to point out one more flaw in your argument: "election strategy" by definition is not squarely within "executive privilege" because it is not about the deliberation over government policy. So there is some tension between claiming the interest of the United States (as opposed to Trump as an individual) and claiming that the sole purpose is political.

[Stephen Lathrop]

Congress consists of two political branches. Everything they do is political. Their legislative purposes are political. Their powers are political.

Folks accustomed to thinking of, "political," as an all-purpose denigrator need to think it over. Politics is the constitutionally specified means to make laws. If Congress practices politics blatantly, using its legitimate powers to persuade citizens to support a law the congressional majority favors, courts have no justifiable reason to intervene because of that.

[Beldar]

On the merits, I don't think the case is close; to the contrary, I think that Trump lacks standing to make them, since they belong to the POTUS, and he's no longer that. But once in the public domain, privilege claims would become moot.

So I'm surprised neither by the stay nor the ruling granting expedited briefing and argument. I expect the D.C. Circuit to reject the privilege claims on their merits very soon after argument. But it wouldn't surprise me if the D.C. Circuit extended the stay until a decision on the inevitable cert petition, failing which the SCOTUS would likely grant a stay. I hope the SCOTUS takes the case and rejects the privilege claims on their merits, and dismisses the case with prejudice.