December 3, 2021

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Trump cannot shield White House records from Jan. 6 committee, judge rules – POLITICO

5 min read

The decision is a crucial victory for the Jan. 6 committee in the House, albeit one that may ring hollow if an appeals court — or, potentially, the U.S. Supreme Court — steps in to slow the process down. The documents Trump is seeking to block from investigators include files drawn from former chief of staff Mark Meadows, adviser Stephen Miller and White House deputy counsel Patrick Philbin, as well as call and visitor logs.

Committee investigators are hopeful these records will provide insight into Trump’s months-long campaign to stoke disinformation about the integrity of the 2020 election, as well as his effort to weaponize his administration after his defeat to attempt in order to overturn the vote.

Chutkan began her ruling with a recitation of Trump’s months-long effort to sow distrust in the election results, as well as his attempt to call supporters to Washington to pressure lawmakers to refuse to certify his defeat to Joe Biden. Against that backdrop, thousands of Trump supporters descended on and breached the Capitol, with hundreds violently attacking police officers and forcing Congress and Vice President Mike Pence to flee for safety. Hundreds of rioters have since been arrested and charged for their role in the attack .

The Jan. 6 committee is examining what responsibility Trump bears for inciting the insurrection and began its probe over the summer by asking the National Archives for massive tranches of documents from Trump’s White House. Under federal records law, the current president, Joe Biden, was presented with the documents sought by the committee. Biden declined to invoke executive privilege to shield them from the committee.

After Biden’s decision, Trump sued the Jan. 6 committee and the National Archives, saying that as a former president, he still has the right to assert executive privilege over the records — even if Biden disagreed. That power, Trump argued, is rooted in a Richard M. Nixon-era Supreme Court ruling that found former presidents retain a “residual” interest in the confidentiality of their own White House records.

But Chutkan said the Nixon precedent fails to help Trump’s case. In that instance, the current president — the only sitting “executive” — had not weighed in on Nixon’s effort to shield his records. In this case, Biden had already agreed to provide the documents to the Jan. 6 committee, waiving confidentiality concerns as a result of the “unprecedented” nature of the attack on Congress.

“At bottom, this is a dispute between a former and incumbent President. And the Supreme Court has already made clear that in such circumstances, the incumbent’s view is accorded greater weight, Chutkan wrote, citing the Nixon-era ruling.

Chutkan also rejected Trump’s proposal that she review every document on a case-by-case basis to determine whether it should be withheld from Jan. 6 investigators.

“The court … is not best situated to determine executive branch interests, and declines to intrude upon the executive function in this manner,” Chutkan wrote. “It must presume that the incumbent is best suited to make those decisions on behalf of the executive branch.”

“The court will not second-guess [Biden’s] decision by undertaking a document-by-document review that would require it to engage in a function reserved squarely for the Executive,” she added.

During oral arguments last week, Chutkan initially indicated she considered some of the Jan. 6 committee’s requests for Trump records to be extremely broad. She cited requests for any discussion of elections and polling data stretching back to April 2020. Chutkan repeated that assertion in her ruling but said the requests were nevertheless within the committee’s power to make.

“[W]hile some of the Select Committee’s requests are indeed broad, so too is Congress’ power to obtain information,” she said.

There was one modest victory for Trump in the ruling: Chutkan agreed with Justice Department lawyers that some of the records sought by the committee — like polling data — would not be considered “presidential records” and, therefore, shouldn’t be produced by the National Archives. The judge added that “personal papers or communications” also fall within that category. The committee could try to subpoena those sorts of records directly from Trump, but thus far has not taken that step.

Chutkan cited a litany of decisions by former presidents to waive executive privilege on matters of national significance, noting that in each case the incumbent president made a judgment about what was in the best interest of the public — as Biden has done here.

“The notion that the contemplated disclosure will gravely undermine the functioning of the executive branch is refuted by the incumbent President’s direction to the Archivist to produce the requested records, and by the actions of past Presidents who similarly decided to waive executive privilege when dealing with matters of grave public importance, such as the Watergate scandal, the Iran-Contra affair, and 9/11,” Chutkan said.

Legal experts said Chutkan’s ruling reflected the relatively thin case Trump had to prevent his records from going to Congress.

“In the final analysis, the judge reached the most logical conclusion: that no matter how broad these requests might be, they were no broader than the Committee’s authority to make them, while the legal authorities claimed by the former President were sparse to nonexistent,” said Kel McClanahan, executive director of National Security Counselors, which filed its own brief supporting the Jan. 6 committee’s bid for the documents.

Rep. Bennie Thompson (D-Miss.), chair of the House committee, saluted the ruling.

“We can only present the facts,” he said. “Look, I’m happy we got a good decision from the judge. It says we’re on sound footing by getting this information. And if somebody is hollering this hard and this loud, I am to assume that undoubtedly, you have something to hide. If we have access to the records, they’ll speak for themselves. So we look forward, as a committee, to getting it. And we’ll let the evidence based on what we look at determine guilt or innocence.“

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