Judge Asks Trump’s Grounds for Keeping Documents Secret on Jan. 6

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WASHINGTON-A federal judge on Thursday expressed skepticism about Donald J. Trump’s attempt to block the release of a wide range of documents related to the unrest in the Capitol, suggesting he may be open to allowing a congressional committee examining the violence to review hundreds of files the former president wanted to keep secret.

At a hearing via video conference, Judge Tanya S. Chutkan of the U.S. District Court for the District of Columbia repeatedly asked insightful questions about the legal basis for Mr. Trump’s claim that he was not at least 770 pages of documents related to the mob attacks must be protected. by executive privilege.

“The riot took place on Jan. 6 at the Capitol,” Judge Chutkan told Mr. Trump’s attorney Justin Clark. “That was literally the house of Congress.”

However, the judge also suggested that the select House committee investigating the attack could be overstated, referring to its need for documents-which potentially spans millions of pages-as “immense” and , at one point, “alarmingly broad.”

The hearing is the first legal battle in what is likely to be a lengthy battle in the courts between the panel and Mr. Trump talks about executive secrecy, congressional prerogatives and how to balance the two in an inquiry into what role a former president played in the circumstances that led to a violent attempt to thwart the peaceful transfer of power.

The panel looks at the source of the attack, in which a mob of Mr. Trump’s supporters stormed the Capitol seeking to disrupt Congress ’counting of electoral votes to formalize President Biden’s victory.

During the arguments, Douglas N. Letter, the Chamber’s general counsel, said the committee was conducting “one of the most important” investigations in congressional history.

Mr. Letter said the committee’s requests need to be broad because it not only examines the attack on the Capitol, but also Mr. Trump’s lies about the election, attempts to undermine faith in democracy. of America and plans to try to cling to power.

“We want to make sure it doesn’t happen again,” Mr. Letter said.

Mr. Clark said Mr. Trump has a valid claim to keeping information private.

“The former president has rights,” he said. “There is a constitutional privilege that the former president can assert in the documents.”

It is not clear how quickly the judge will decide. Any decision is likely to result in an appeal. Democrats are concerned that Mr. Trump is trying to postpone their questioning until Republicans have a chance to regain control of the House in 2022 and end the investigation into the attack.

Mr. filed. Trump last month filed a lawsuit against the National Archives aimed at blocking the disclosure of White House files related to his actions and communications surrounding the Jan. 6 riots. In a 26 -page complaint, a lawyer for to Mr. Trump that the Constitution gave the former president the right to assert their confidentiality even when he was no longer in office – and even Mr. Biden refused to assert executive privilege to them.

The outcome of the lawsuit will bring consequences for how much the panel can find out about Mr. Trump’s role in the unrest, raise thorny questions for the Biden administration and potentially set new precedents about the prerogative of the president and the separation of powers.

Elizabeth J. Shapiro, a Justice Department attorney representing the National Archives, said the case is a rare instance where a court has been asked to settle a dispute between a former president and current president in which presidential documents may be made public. But because of the subject, Ms. argued. Shapiro, it is clear that Mr. Trump has the weaker claims.

“It should be clear that the events of Jan. 6 have created a duty in congress that goes beyond confidentiality in this instance,” he said.

The committee asked for detailed records about every move and meeting of Mr. Trump on the day of the attack. The panel’s requests, sent to the National Archives and Records Administration, included material about any plans developed in the White House or other federal agencies to derail the Congressional electoral vote count.

“Are we once again on: What did the president know, and when did he find out?” Judge Chutkan asked at one point in the hearing, citing a famous line from the Watergate scandal that ended Richard M. Nixon’s presidency.

The Supreme Court suggested that former presidents use some remaining executive privilege powers. In one case in 1977, the court said Mr. Nixon can claim executive privilege even if he is no longer in office and it is not supported by his successors, Gerald R. Ford and Jimmy Carter. Mr. defeated. Nixon in that case, but the court suggested he could block the release of some of his papers in the future.

Understand the Executive Privilege Claim in Jan. 6. InquiryCard 1 of 8

A major issue that has not been tested. Donald Trump’s power as former president to keep information secret from his White House became a major issue in the House investigation into the unrest in the Capitol on Jan. 6. Amid a new lawsuit by Mr. Trump and a move to i -contempt Stephen K. Bannon in Congress, here is a breakdown of executive privilege:

What is executive privilege? It is a power claimed by presidents under the Constitution to prevent the other two branches of government from having access to certain information of the internal executive branch, particularly confidential communications involving the president or his top aides. .

What is Trump’s claim? Former President Trump filed a lawsuit aimed at blocking the disclosure of White House files related to his actions and communications surrounding the unrest in the Capitol on Jan. 6. He argues that these matters should remain a secret. as a matter of executive privilege.

Is Trump’s claim to privilege justified? We probably won’t know for a long time, just in case. The constitutional line between a president’s confidentiality powers and Congressional investigative authority is blurred. Historically, such disputes have often been resolved by compromise, not by judicial decisions.

Is executive privilege an absolute power? No. Even a legitimate claim of executive privilege may not always prevail in court. During the Watergate scandal in 1974, the Supreme Court upheld an order requiring President Richard M. Nixon to return his tapes to the Oval Office.

Can former presidents exercise executive privilege? Yes, but the courts may view their claims with less respect than current presidents. In 1977, the Supreme Court ruled that Nixon could claim executive privilege even if he was no longer in office, even if the court ultimately ruled against him in the case.

Is Steve Bannon covered by executive privilege? This is not clear. If any finding of contempt against Mr. Bannon will take legal action, it will raise the novel legal question of whether or to what extent an executive privilege claim can reach communications between a president and an informal adviser outside the government.

What is the contempt of Congress? It is a punishment imposed on people who oppose congressional subpoenas. Congress may refer contempt citations to the Justice Department and seek criminal charges. Mr. may be contempt. Bannon if he refuses to comply with a subpoena seeking documents and testimony.

In letters to the National Archives, which has been the custodian of White House papers since Mr. Trump’s tenure, Mr. Biden’s top attorney at the White House, Dana A. Remus, clarified that the president did not think that legitimate to claim executive privilege under these circumstances.

Judge Chutkan repeatedly sparred with Mr. Clark why does Mr. Trump to keep the documents secret.

“How are the visitor logs, showing who goes to the White House on particular days – how are those going to have the privilege?” he asked.

The judge repeatedly pressured Mr. Clark to name what damage the former president would suffer if he allowed the documents to be provided to the committee.

“Damage exists in the institution of the presidency,” Mr. Clark said.

“But the current president disagrees,” the judge replied.

Mr. Trump asserted executive privilege on more than 656 pages that included suggested talking points for Kayleigh McEnany, his former press secretary; a handwritten note about Jan.. 6; a draft text of a presidential speech for the “Save America” rally that preceded the mob attack; and a draft executive order on the subject of election integrity, the filing said.

Mr. Trump also seeks to block the release of 46 pages of records from the files of Mark Meadows, his former chief of staff; Stephen Miller, his former senior adviser; and Patrick F. Philbin, his former deputy counsel. Mr. Trump releases the White House Daily Diary – a record of the president’s moves, phone calls, trips, briefings, meetings and activity – as well as records showing phone calls to the president and Vice President Mike Pence about Jan. 6.

Finally, Mr. Trump asserted executive privilege on 68 additional pages, including a draft proclamation honoring Capitol Police and two officers who died after the riot, Brian D. Sicknick and Howard Liebengood, as well as related email; a memo about a potential lawsuit against several states that Mr. Biden won last year; an email chain from a state official about election -related issues; and questioning points about supposed election irregularities in a county in Michigan.

Mr. Clark called the committee’s request an “extensive document dump” that was nothing but a “partisan” attack.

Judge Chutkan asked him to serve the language.

“I agree with you, Mr. Clark: Some of these requests are surprisingly broad,” he said. “But some of it is very specific, and specifically targets the events of Jan. 6.”

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