Trump’s team is also asking the court that the archives first identify any documents from Trump’s White House that might respond to the request and then have Trump’s lawyers fully reviewed before making them available to Congress. This process can take years.
The lawsuit sparked a complex legal battle over the Congressional investigation and executive privileges. In the Nixon era, the Supreme Court recognized that former presidents might have an interest in keeping documents safe from the public. However, this is the first public litigation between a current president and his predecessor over the assertion of executive privileges.
Trump’s claim is secondary, arguing, first, that the committee’s Jan. 6 motion for documents is so broad as to be unconstitutional. Second, the lawsuit alleges that the committee lacks a legitimate “legislative purpose” for pursuing the documents. Both arguments were features of a lawsuit Trump filed in 2019 when Democrats tried to get his financial records from accounting firm Mazars USA.
That battle against Mazars led to a Supreme Court ruling that set limits to Congressional investigations into incumbent presidents – not former – but also underscored the broad power of Congress to solicit information in connection with its legislative endeavors.
In alleging that the Jan. 6 panel had no valid legislative purpose in locating the White House records, Trump’s team is relying on the requirement for Congressional investigators to demonstrate that they are searching for materials that meet their legislative requirements Support work.
“[T]The committee has its own charter – “the facts, circumstances and causes relating to the events of the 6th to obtain an extensive collection of documents and records,” argues Trump’s team.
The select committee has previously denied allegations that it is conducting an investigation without a legislative aim. The resolution to set up the committee identified several policy areas where it could legislate – from the use of social media by domestic extremists, to how intelligence services deal with threat intelligence, to the security situation in the Capitol.
Trump’s lawsuit also focuses on the Presidential Records Act, the federal law that regulates access to White House documents. Trump’s lawyers argue that it is unconstitutional for the law to allow an incumbent president to override a former president for privilege. This question has never been fully contested in court.
The complaint argues that the court should also prevent the archives from sharing materials that Trump considers privileged. Many legal experts believe that only the incumbent president can exercise executive privilege. But a court has never decided whether and to what extent this privilege extends after a president has left office.
The lawsuit also calls on the court to slow down the process of getting the documents to Congress. Trump’s lawyers argue that they need more time to review responsive documents and that they don’t have to make decisions about executive privileges without seeing all the records in context.
It usually takes years for the archives to sort and organize the White House records. If a judge blocks the release of documents until the archivist has reviewed all of the documents, Congress could be forced to make a significant delay before receiving the materials in question.
“Today President Donald J. Trump filed a lawsuit to defend the constitution, the office of president and the future of our nation, which the bogus selection committee is trying to destroy,” Trump spokesman Taylor Budowich told POLITICO in a statement. “The fact is, America is under attack by Pelosi’s communist attempt to silence and destroy the America First patriots through this bipartisan and illegitimate investigation.”
The lawsuit was filed on Trump’s behalf by Jesse Binnall, an attorney who had previously worked with Sidney Powell to overturn Michael Flynn’s guilty guilty guilty guilty admission and who helped Trump bring charges of election fraud in Nevada.
The indictment against Trump’s preferential privileges lasted months. The January 6th special committee asked the National Archives in late August for extensive records of communications by the Trump administration on the day of the attack. Documents were also requested that were submitted by 1.
In response to this request, in accordance with normal practice, the archive director sent hundreds of pages of these records to Trump and his attorneys for review. That was just the first batch of material; The archivist is still reviewing tons of documents for records, which may also respond to the request, and is continually sending those records to Trump for review.
Trump and his team found that at least three dozen of the records from that first batch fell under executive privilege – which meant they believed Trump had the right to keep them secret. Trump sent a letter to the archivist on October 8, which POLITICO reviewed, outlining his position and asking the archivist to withhold the documents.
But the Biden White House has taken a different position on whether or not these records can be made public. Biden’s White House attorney, Dana Remus, told the archivist later on October 8th that the president wanted the documents to be made available to Hill.
The lawsuit is likely to bolster several other witnesses who face subpoenas from the Jan. 6 committee, which includes two anti-Trump Republicans. Steve Bannon, a former Trump adviser and longtime political ally, cited Trump’s claim to the executive’s privilege to refuse to provide documents and testimony to the panel. The committee is due to arrest Bannon on Tuesday for criminal contempt for Congress.
The lawsuit puts Biden at risk, as a court ruling that limits the scope of executive privileges could help Republicans in Congress target his administration’s records after he leaves office. But when White House press secretary Jen Psaki was asked about this prospect recently, she pointed out the unprecedented nature of the attack on the Capitol.
“I can assure you … that this president has no intention of leading a rebellion in our nation’s Capitol,” she told reporters.
Long before Trump was elected, US presidents invoked the executive branch’s privilege to prevent their allies from answering questions from investigators – and at times, federal judges have dismissed their arguments. A federal judge has thwarted then-President Bill Clinton’s efforts to use the privilege to deter White House staff from answering questions on the Monica Lewinsky investigation. Years later, a federal judge ordered the Obama administration to hand over documents relating to the ATF’s “Fast and Furious” weapons operation, despite claims of executive privilege.
During his presidency, numerous Trump allies pointed to the executive’s privilege to evade requests from Congress, including during the House Intelligence Committee investigation into Russia and the first impeachment trial against Trump.
The lawsuit comes as Trump signals he could run for president again in 2024 and as he urges his Republicans to embrace the false conspiracy theory that the 2020 election was stolen from him.