The Volokh Conspiracy
Mostly law professors | Sometimes contrarian | Often libertarian | Always independent
This afternoon the U.S. Court of Appeals for the D.C. Circuit rejected former President Donald Trump's request for a preliminary injunction barring the Archivist from turning over documents requested by the Congressional committee investigating the events of January 6 and Trump's effort to subvert the outcome of the 2020 election. Without question the former President will now seek an injunction from the Supreme Court. While such a move might further delay the release of documents, I do not think Trump will ultimately prevail.
Judge Millett wrote the court's 68-page opinion in Trump v. Thompson, joined by Judges Wilkins and Jackson. Interestingly enough, the court decided to issue this opinion on a Thursday afternoon, only ten days after the case was argued, rather than wait to release the opinion in the normal course tomorrow. (The D.C. Circuit generally releases opinions on Tuesday and Friday mornings.)
On first-skim, the opinion seems correct. The former President's executive privilege claim here is particularly weak, given both the subject matter of the material sought and the current President's conclusion that executive privilege does not and should not bar the release of these documents. Further, the congressional interest in these documents is strong, and certainly far greater than it was for the former President's personal financial records.
Here is how Judge Millett summarizes the key issues and the court's conclusions:
The central question in this case is whether, despite the exceptional and imperative circumstances underlying the Committee's request and President Biden's decision, a federal court can, at the former President's behest, override President Biden's decision not to invoke privilege and prevent his release
to Congress of documents in his possession that he deems to be needed for a critical legislative inquiry.
On the record before us, former President Trump has provided no basis for this court to override President Biden's judgment and the agreement and accommodations worked out between the Political Branches over these documents. Both Branches agree that there is a unique legislative need for these
documents and that they are directly relevant to the Committee's inquiry into an attack on the Legislative Branch and its constitutional role in the peaceful transfer of power.
More specifically, the former President has failed to establish a likelihood of success given (1) President Biden's carefully reasoned and cabined determination that a claim of executive privilege is not in the interests of the United States; (2) Congress's uniquely vital interest in studying the January
6th attack on itself to formulate remedial legislation and to safeguard its constitutional and legislative operations; (3) the demonstrated relevance of the documents at issue to the congressional inquiry; (4) the absence of any identified alternative source for the information; and (5) Mr. Trump's failure 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.
The opinion concludes:
For all of the foregoing reasons, former President Trump has not shown that he is entitled to a preliminary injunction.
We do not come to that conclusion lightly. The confidentiality of presidential communications is critical to the effective functioning of the Presidency for the reasons that former President Trump presses, and his effort to vindicate that
interest is itself a right of constitutional import.
But our Constitution divides, checks, and balances power to preserve democracy and to ensure liberty. For that reason, the executive privilege for presidential communications is a qualified one that Mr. Trump agrees must give way when
necessary to protect overriding interests. See Oral Arg. Tr. 33:18–21, 34:23–25. The President and the Legislative Branch have shown a national interest in and pressing need for the prompt disclosure of these documents.
What Mr. Trump seeks is to have an Article III court intervene and nullify those judgments of the President and Congress, delay the Committee's work, and derail the negotiations and accommodations that the Political Branches have made. But essential to the rule of law is the principle that a former President must meet the same legal standards for obtaining preliminary injunctive relief as everyone else. And former President Trump has failed that task.
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.