Skip to main content

‘We Have One President at a Time’: Federal Appeals Court Smacks Down Trump’s Executive Privilege Assertion Over Jan. 6 Documents

Donald Trump and Bennie Thompson

Former President Donald Trump and Rep. Bennie Thompson (D-Miss.), the chair of the Jan. 6th Committee

A federal appeals court has stymied former President Donald Trump’s effort to block the release of documents requested by the House committee investigating the Jan. 6 attack on the U.S. Capitol.

A unanimous three-judge panel on the U.S. Court of Appeals for the D.C. Circuit issued a ruling Thursday affirming a lower court’s denial of Trump’s request for an injunction. Trump had tried to assert executive privilege over a tranche of documents set to be released by the National Archives purportedly related to his communications on Jan. 6. On that day, a mob of Trump supporters stormed the Capitol in an attempt to stop the counting of Electoral College votes confirming President Joe Biden’s win in the 2020 election.

President Biden, on advice from legal counsel, had “determined that an assertion of executive privilege is not in the best interests of the United States,” and determined that the documents should be released to the committee.

Trump subsequently sued Rep. Bennie Thompson (D-Miss.), chair of the House committee investigating the events of Jan. 6, and requested an injunction barring release of the documents.

“Presidents are not kings, and Plaintiff is not President,” U.S. District Judge Tanya Chutkan memorably wrote in denying Trump’s injunction request in November.

The three circuit court judges who issued the ruling Thursday agreed.

“As the incumbent, President Biden is the principal holder and keeper of executive privilege, and he speaks authoritatively for the interests of the Executive Branch,” wrote Circuit Judge Patricia Millett, a Barack Obama appointee. “Under our Constitution, we have one President at a time. Article II is explicit that ‘[t]he executive Power shall be vested in a President of the United States of America.’ As between a former and an incumbent President, ‘only the incumbent is charged with performance of the executive duty under the Constitution [citations removed].'”

Millet was joined by Robert Wilkins, also an Obama appointee, and Ketanji Brown Jackson, a Biden appointee.

The judges found that “former President Trump has provided no basis for this court to override President Biden’s judgment and the agreement and accommodations worked out between the Political Branches over these documents.”

The judges found that Trump wasn’t able to show that he would likely succeed on the merits of his case.

More specifically, the former President has failed to establish a likelihood of success given (1) President Biden’s carefully reasoned and cabined determination that a claim of executive privilege is not in the interests of the United States; (2) Congress’s uniquely vital interest in studying the January 6th attack on itself to formulate remedial legislation and to safeguard its constitutional and legislative operations; (3) the demonstrated relevance of the documents at issue to the congressional inquiry; (4) the absence of any identified alternative source for the information; and (5) Mr. Trump’s failure even to allege, let alone demonstrate, any particularized harm that would arise from disclosure, any distinct and superseding interest in confidentiality attached to these particular documents, lack of relevance, or any other reasoned justification for withholding the documents. Former President Trump likewise has failed to establish irreparable harm, and the balance of interests and equities weigh decisively in favor of disclosure.

In its ruling, the panel was clear that although former presidents “retain for some period of time a right to assert executive privilege over documents generated during their administrations,” that right “protects only ‘the confidentiality required for the President’s conduct of office[,]’ rather than any personal interest in nondisclosure.”

The ruling noted that Trump himself had “agreed that the disclosure decision of an incumbent President controls within the Executive Branch over the contrary claim of a former President,” and that “all Presidents have agreed that the Constitution does not obligate an incumbent President or court to uphold the views of a former President.”

The court addressed Trump’s claims that future presidents may suffer if his executive privilege claim over the requested documents is denied:

Former President Trump predicts that, going forward, incumbent Presidents will indiscriminately decline to assert executive privilege over a former President’s records whenever they are of the opposite political party. But the possibility of mutually assured destruction of the privilege cuts against the risk of heedless disclosures. More to the point, the greatest protection for executive privilege is the natural self-interest of each new occupant of the White House. Presidents of both parties have long jealously guarded the powers and prerogatives of the office. And every incumbent President will be the next former President. That gives the incumbent every incentive to afford robust protection to the confidentiality of presidential communications, even if only to assure receipt of the best possible advice during his or her tenure. There are, in other words, ‘obvious political checks against an incumbent’s abuse of the privilege.’ [citations removed]

The court also said that its decision came after careful consideration.

[F]ormer President Trump has not shown that he is entitled to a preliminary injunction. We do not come to that conclusion lightly. The confidentiality of presidential communications is critical to the effective functioning of the Presidency for the reasons that former President Trump presses, and his effort to vindicate that interest is itself a right of constitutional import. But our Constitution divides, checks, and balances power to preserve democracy and to ensure liberty. For that reason, the executive privilege for presidential communications is a qualified one that Mr. Trump agrees must give way when necessary to protect overriding interests. The President and the Legislative Branch have shown a national interest in and pressing need for the prompt disclosure of these documents. What Mr. Trump seeks is to have an Article III court intervene and nullify those judgments of the President and Congress, delay the Committee’s work, and derail the negotiations and accommodations that the Political Branches have made. But essential to the rule of law is the principle that a former President must meet the same legal standards for obtaining preliminary injunctive relief as everyone else. And former President Trump has failed that task. [citations removed]

Trump will likely turn next to petitioning the Supreme Court to take up his case.

In the meanwhile, you can read the latest ruling below.

[Photo of Trump via Pete Marovich for The New York Times; Photo of Rep. Thompson via Chip Somodevilla/Getty Images]

Have a tip we should know? [email protected]

Filed Under:

Follow Law&Crime: