Trump Seeks Continued Block on Sending White House Files to Jan. 6 Panel

WASHINGTON — Former President Donald J. Trump asked a federal appeals court on Tuesday to block the National Archives from giving Congress quick access to records from his White House related to the Jan. 6 riot at the Capitol, arguing that litigation over whether they are properly shielded by his claim of executive privilege should fully play out first.

In a 54-page brief filed before the Court of Appeals for the District of Columbia Circuit, Jesse R. Binnall, a lawyer for Mr. Trump, reiterated his argument that the Constitution gives the former president the power to keep those files confidential even though he is no longer in office — and even though President Biden refused to assert executive privilege over them.

“The stakes in this case are high,” Mr. Binnall wrote, adding that a decision to uphold Congress’s subpoena over Mr. Trump’s objections would set a precedent that would shift the balance between the legislative and executive branches.

“It is naïve to assume that the fallout will be limited to President Trump or the events of Jan. 6, 2021,” he wrote. “Every Congress will point to some unprecedented thing about ‘this president’ to justify a request for his presidential records. In these hyperpartisan times, Congress will increasingly and inevitably use this new weapon to perpetually harass its political rival.”

This dispute raises interesting questions about the scope and validity of executive privilege when invoked in an instance by a former president, without the support or consent of the incumbent. It centers on a subpoena issued by the House committee investigating the Jan. 6 attack on the Capitol by Trump supporters seeking to block Congress from certifying Mr. Biden’s election win.

The committee is seeking White House documents that would show Mr. Trump’s movements, meetings, and communications before and during the day of the riot. Jan. 6 began with a rally convened by Mr. Trump at which he repeated his baseless assertion that the election was stolen from him while encouraging his supporters to “fight like hell” and to walk down to the Capitol.

After Mr. Biden told the head of National Archives by his White House counsel that he believed it was important for the Jan.6 committee to obtain White House files and would not invoke executive privilege, Mr. Trump filed suit to stop the agency from disclosing the records to Congress.

Tanya Chutkan was a Federal District Court judge who sided with Congress in the case against the Biden administration. She ruled that, while Mr. Trump can invoke executive privilege, any residual secrecy power he might have were outweighed in these circumstances due to the constitutional investigative authority of Congress supported by Mr. Biden.

Mr. Trump “does not acknowledge the deference owed to the incumbent president’s judgment. His position that he may override the express will of the executive branch appears to be premised on the notion that his executive power ‘exists in perpetuity,’” Judge Chutkan wrote. “But presidents are not kings, and plaintiff is not president.”

The National Archives had been scheduled for Friday to provide the first batch of documents to Congress. It has been identifying additional batches continuously. Judge Chutkan refused to stop the transfer of the documents while Mr. Trump appealed, but the D.C. Circuit appeals panel issued a temporary block to freeze the matter in place for now.

Representative Bennie Thompson (Democrat of Mississippi), is the chairman of the Jan.6 committee. He stated that he wants to complete its work by late spring. This raises the question of whether litigation will prevent the panel from obtaining records before it completes its final report.

Mr. Binnall stated in his brief that Congress should have access to the legal issues before Congress can view the disputed records. This suggests that his client would be unable to win the case if the House has not seen the confidential files.

“The limited interest the committee may have in immediately obtaining the requested records pales in comparison to President Trump’s interest in securing judicial review before he suffers irreparable harm,” Mr. Binnall wrote.

In office and out of office, Trump has pursued a strategy that is more like stonewalling than negotiating a compromise. He also uses the slow pace and litigation to push the clock.

Against that backdrop, the appeals court panel has scheduled arguments for Nov. 30 on the preliminary question of whether to continue to block the National Archives from turning over any papers to Congress while it considers the legal merits of Mr. Trump’s executive privilege claim. If it drops that block, Mr. Trump could most likely appeal the decision to the Supreme Court.

All of the judges randomly assigned for the case have been liberal-leaning Democratic appointees. President Barack Obama appointed Judge Chutkan, along with two appeals court judges: Patricia A. Millett (Patia A. Millett) and Robert L. Wilkins (Robert L. Wilkins). Mr. Biden appointed Ketanji Brown, the third appellate judge.

However, the Supreme Court may have a different atmosphere if the case is heard. Six of the nine justices are Republican appointees with conservative leanings, including three who Mr. Trump appointed to the bench.