Court of Appeals Strikes Down Trump Claim of Executive Privilege For Archives

The United States Court of Appeals unanimously rejected Donald Trump’s claim that executive privilege allows him to overrule the current executive’s decision to release documents held by the National Archivist to the 1/6 Committee. You can read the decision HERE.

The only bad news in the decision is that the records will not be immediately released. The court granted a request made by Trump’s attorneys during the hearing that they be allowed 14 days to file a request for cert with the Supreme Court. In addition the court made clear its decision applies only to the specific documents at issue and not to additional documents sought by the 1/6 Committee but not yet reviewed by the executive branch to determine if privilege applies.

The court found the need for the documents “exceptional and imperative” because of the unique nature of what happened on January 6th. The court also seemed to link the insurrection to Trump, describing how he called them there and then urged them to walk to Capitol saying “if you don’t fight like hell, you’re not going to have a country anymore.” The results were devastating. In the words of the court:

“There is a direct linkage between the former President and the events of the day . . . The events of January 6, 2021 marked the most significant assault on the Capitol since the War of 1812. The building was desecrated, blood was shed, and several individuals lost their lives . . . Approximately 140 law enforcement officers were injured, and one officer who had been attacked died the next day. In the aftermath, workers labored to sweep up broken glass, wipe away blood, and clean feces off the walls. Portions of the building’s historic architecture were damaged or destroyed, including precious artwork and statues, murals, historic benches and original shutters.”

The court also emphasized that President Biden did a document by document review to determine if executive privilege should apply to any of the documents and that Biden concluded, as the Chief Executive, that the national interest was best served by not asserting executive privilege. The court found significant that two branches of the government were in agreement with each other and argued that the third branch should not interfere with that.

“The privilege being asserted is not a personal privilege belonging to former President Trump; he stewards it for the benefit of the Republic. The interests the privilege protects are those of the Presidency itself, not former President Trump individually.”

The penultimate paragraph of the decision is quite moving and uses a quote frequently used by conservatives.

“Benjamin Franklin said, at the founding, that we have ‘a Republic — if we can keep it.’ The events of January 6th exposed the fragility of those democratic institutions and traditions that we had perhaps come to take for granted. In response, the President of the United States and Congress have each made the judgment that access to this subset of presidential communication records is necessary to address a matter of great constitutional moment for the Republic. FormerPresident Trump has given this court no legal reason to cast aside President Biden’s assessment of the Executive Branch interests at stake, or to create a separation of powers conflict that the Political Branches have avoided.”