Another Lawsuit Holds The Key To Trump’s Best Defense Against The Jan. 6 Committee

Because House Speaker Nancy Pelosi failed to appoint the requisite number of members, the Jan. 6 committee is arguably invalid under its own authorizing resolution.

Yesterday, the D.C. Circuit Court of Appeals rejected former President Donald Trump’s claim of executive privilege, holding that the archivist of the United States could provide a tranche of Trump’s presidential records to the House’s “Select Committee to Investigate the January 6th Attack on the United States Capitol.”

In a unanimous ruling, the federal appellate court concluded that President Biden’s conclusion that “an assertion of executive privilege is not in the best interests of the United States” controlled and that the archivist, therefore, must hand over the first of three sets of documents requested. The court added, however, that it would await an assessment from the Biden administration before determining whether other sets of documents must likewise be handed over.

Judge Patricia Millett, a Barack Obama appointee, authored the 68-page opinion that fellow Obama appointee Robert Wilkins and Biden appointee Ketanji Brown Jackson joined in full. In rejecting Trump’s request that the court enjoin the archivist from providing the House Select Committee copies of his presidential papers, the federal appellate court considered the controlling preliminary injunction standard that asks whether the moving party—here Trump—has established a likelihood of success on the merits, shows “irreparable harm in the absence of preliminary relief,” demonstrates that the equities favor an injunction, and proves that the injunction is in the public interest.

The court’s analysis in Trump v. Thompson focused mainly on the first factor and whether Trump held a likelihood of success on the merits. He did not, according to the D.C. Circuit, which concluded Trump executive privilege claim failed because “a rare and formidable alignment of factors supports the disclosure of the documents at issue.”

“President Biden has made the considered determination that an assertion of executive privilege is not in the best interests of the United States given the January 6th Committee’s compelling need to investigate and remediate an unprecedented and violent attack on Congress itself,” the court said. Further, “Congress has established that the information sought is vital to its legislative interests and the protection of the Capitol and its grounds.” Finally, “the Political Branches are engaged in an ongoing process of negotiation and accommodation over the document requests,” the court explained, noting its hesitancy to circumvent that process.

Although the court considered the other preliminary injunction factors, those merely bolstered the court’s conclusion that Trump was not entitled to a preliminary injunction preventing the release of his documents.

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