An appeals court concluded Thursday that former President Donald Trump can prevent the National Archives from turning over certain White House records to the House select committee investigating the Jan. 6 U.S. Capitol insurrection. For now. And that is what is key.
The House select committee should and will obtain these documents. Trump’s victory is almost certainly temporary, but in a world in which delaying the House’s investigation is crucial, it is still consequential.
Trump’s victory is almost certainly temporary.
Let’s remember how we got here. An angry mob, revved up by Trump and his supporters, attacked our nation’s capitol. Five people died. In investigating the insurrection, the House select committee is trying to determine, in part, what our nation’s leaders knew and when. It should go without saying that it is not just beneficial, but necessary, to learn things that include what Trump knew about the attempt to thwart the peaceful transfer of power and what he said to others about attempts to undermine the certification of the presidential election.
The committee directed the National Archives to turn over White House records pertaining to Trump’s activities on Jan. 6. Trump, true to form, sued to block the release of those records. He sued both the National Archives and Congress, claiming executive privilege and congressional overreach. The district court judge denied Trump’s attempt to block the release of the documents and refused to delay the National Archives’ transfer of those records to the committee. Trump, no stranger to delay-tactic-driven litigation, appealed to the District of Columbia Circuit, which issued an administrative stay, essentially pushing pause until it can hear oral arguments in the case, which it has set for the end of November.
Sound like a victory for Trump? It is, but almost certainly a very short-lived one.
Trump has to be upset with the three-judge panel who will hear his appeal. Two were appointed by President Barack Obama, and the other, Judge Ketanji Brown Jackson, was just elevated to the U.S. Court of Appeals by President Joe Biden. When Jackson was on the District Court, she correctly concluded that former White House counsel Don McGahn had to comply with a congressional subpoena. The House issued that subpoena as part of the investigation that led to Trump’s first impeachment. Jackson’s opinion famously included the line, “The primary takeaway from the past 250 years of recorded American history is that Presidents are not kings.” It’s hard to see this jurist looking with favor upon Trump’s weak-tea claim of executive privilege. But truly, any federal judge, regardless of who appointed them, should reject Trump’s bid to deprive the House committee of these documents. Here we have a former president who is trying to block the release of records that could further implicate him in what certainly is looking like an attempted coup. Executive privilege is, very broadly, designed to allow presidents to obtain candid advice and be able to have conversations that may include sensitive topics such as national security without fear that Congress will later attempt to obtain information about those conversations. The privilege is not absolute, but rather asks that we weigh the benefits and burdens of each particular request for information. It is far from clear that executive privilege even applies to former occupants of the Oval Office. Any federal judge, regardless of who appointed them, should reject Trump’s bid to deprive the House committee of these documents. If members of the judiciary allow Trump to shield these documents from public view based on an assertion of executive privilege, then the privilege will have been so inappropriately expanded that it can be used to subvert the proper functioning of our government. This is in part why the Biden administration declined to assert executive privilege over the requested records, even though presidents typically like to be protective of claims related to this privilege. As the White House counsel made clear when declining to assert executive privilege with respect to these documents, the privilege “should not be used to shield, from Congress or the public, information that reflects a clear and apparent effort to subvert the Constitution itself.” Perhaps put more bluntly: One should not attempt to undermine the Constitution and then use a constitutional protection like executive privilege to prevent anyone from investigating that attempt. If and when Trump loses before the District of Columbia Circuit, he could then file an emergency appeal with the Supreme Court. The Supreme Court should, and hopefully will, turn down this request as quickly as it takes it to type the word “DENIED.” But even assuming Trump loses before the District of Columbia Circuit and the Supreme Court, the process could take up to two months. This may not be good news for a committee that wants to wrap up its work by early spring. However, the committee should take its time. The strength of our Constitution is at stake.
Jessica Levinson is a Loyola Law School professor and MS NOW columnist. 
