Former President Donald Trump went to court to block the release of those documents, but the DC Circuit Court of Appeals’ careful and speedy decision was just the holiday gift our republic needed; on time and designed to stand the test of time.
After Trump supporters stormed the US Capitol and disrupted the electoral vote count on January 6, the House of Representatives convened a select committee to investigate the attack and to recommend legislation to armor our democracy against future attempts to overturn our elections.
In August, the committee asked the National Archives for Trump administration papers, including call logs, White House visitor records and other documents that may be related to the attack and its run-up. It did so with good reason, since the attackers sought to vindicate Trump’s false claims about the election and since Trump initially egged them on with a speech calling for them to go to the Capitol and “fight like hell.”
After careful review, President Joe Biden agreed to release the documents and to reject Trump’s request to assert executive privilege. But Trump sued, claiming the release would somehow violate executive privilege, which protects communications between presidents and their advisors. A federal district court rejected Trump’s request for a preliminary injunction, and he appealed. Now that appeal too has been swiftly rejected.
Judge Patricia Millett’s decision Thursday for a unanimous three-judge panel was probably Trump’s last stop before the US Supreme Court, and given the decision, the high court may not give Trump much of a hearing.
It is because this is not a difficult legal question, no matter how you look at it. Congress asked the National Archives for documents, in pursuit of an indisputably legitimate aim: It is hard to imagine what could be more central to Congress’ mission than investigating and preventing mob insurrections aimed at disrupting Congress’ business.
The sitting president carefully evaluated that request and decided under the extraordinary circumstances here, releasing the documents is in the national interest. The representatives elected by the people have decided that the documents should be released, or as the appellate court put it, “the judgment of the Political Branches is unified as to these particular documents.”
In the face of the considered judgment of the people’s representatives, the individual who was resoundingly defeated at the polls in November 2020 nevertheless sought to prevent disclosure by asserting the privilege of the presidency he no longer holds.
But, as the appellate court held, “[u]nder our Constitution we have one President at a time.” Courts must defer to the sitting president’s assessment of the national interest — especially when it aligns with Congress’ determination — in the absence of a powerful showing to the contrary.
Critically, as the new opinion emphasized, Trump has done nothing to show that Congress and the sitting president misunderstood or misapplied the national interest. Trump just asserts that he disagrees — but the court record contains not a single fact or argument to explain why Congress and President Biden are wrong as to any specific document.
As the court put it: “he has not pointed to a single record” whose release would somehow offend executive privilege. “Mr. Trump has made no record nor even hinted to this court what context or information has been overlooked or what information could override President Biden’s calculus.”
The decision’s wisdom goes deeper than its correct application of law, though. It is deeply rooted in the factual record; tied to a careful and modest understanding of the judiciary’s role in our constitution; and — not least important — it came quickly.
In its approach and its substance, this decision seems to have been written to be upheld by the US Supreme Court. (It even, in its conclusion, name-checks the title of Justice Neil Gorsuch’s book). Trump’s lawyers have already said the Supreme Court is their ultimate destination and the appellate court — even though it ruled against him — gave Trump 14 days to go to the Supreme Court and get an injunction against further disclosure. That period runs out on December 23.
While one can never know what the high court will do, there is substantial reason to doubt they will step in. Substantively, Trump’s arguments fly in the face of the logic and structure of our Constitution and law. As we at the States United Democracy Center laid out in an amicus brief filed in the case, Trump can no more take executive privilege with him than he could take the Resolute desk or Gilbert Stuart’s portrait of Washington.
The Supreme Court shouldn’t bother with this case and should decline to intervene, just as they do in the vast majority of cases. As they showed in the 2020 election, they are not necessarily willing to discard the law in favor of partisanship, even though six of nine were named by presidents of Trump’s party, and three were his own nominees. The law here is no less clear than it was when they refused to hear cases advancing Trump’s bogus claims about the election.
The DC Circuit decision does not invent new legal tests or purport to make decisions about future Trump administration records requests. It simply says the courts need to defer to the political branches in the absence of any factual record showing as to why they should overturn Congress and the President. It is the kind of judicial modesty Chief Justice John Roberts has extolled, and it should protect the decision against reversal.
The decision’s speed is notable, too. Sixty-eight pages of careful analysis and forceful writing, handed down nine days after oral argument, shows the DC Circuit appreciates the urgency of Congress’ inquiry.
As we wrote in our amicus brief in this case: January 6 is not over. The attack on our elections is still ongoing in the states and Congress needs to propose solutions. This decision shows the courts can — and should — move quickly to ensure Congress has the information it needs to protect our democracy.
Finally, the new decision is also notable because it validates the January 6 committee’s approach: deliberate, but vigorous and relentless. When taken together with Wednesday’s news the New York Attorney General is subpoenaing Trump for a civil deposition in her investigation of his businesses, the day’s legal news was very bad indeed for the former president.
Trump’s delay tactics, which served him so well while he was president, seem to be failing him now. It strikes an ominous note for those — like former Trump Chief of Staff Mark Meadows and ex-political advisor Steve Bannon — who are taking this same path.
The decision sent a message: Going forward, presidents and their associates can’t simply hide behind vague and substance-free assertions of privilege to block inquiry. It is not just a present for Congress. It is a gift to our republic.
