The January 6 Committee requested Trump Administration records maintained by the National Archivist for its investigation of the Capitol insurrection. These records are normally not released for at least 12 years, but can be released earlier if the current President waives executive privilege. President Biden did so and the National Archivist, after doing the required statutory consultation with Trump, announced his intention to release the records.
Naturally, Trump did what any not so innocent man would do. He sued to keep evidence of his potential crimes secret. On November 9th the United States District Court for the District of Columbia issued a strong decision in favor of the Committee. Judge Tanya Chutkan held the Committee was entitled to the documents noting that “Presidents are not kings, and Plaintiff is not President.” Judge Chutkan found that under the law only the current executive can assert executive privilege.
Never one to accept even the most clear of defeats Trump appealed. The United States Court of Appeals fast tracked the case setting oral arguments for November 30th. Yesterday the Court of Appeals issued a very interesting order related to those oral arguments.
The order directs the parties to provisions of 44 U.S.C. § 2204 and directs them to be prepared to brief “implicate this court’s jurisdiction or the District Court’s jurisdiction in the case.” Let’s look at those provisions to see what the Court of Appeals is getting at because it may well be that Trump is not even entitled to have this matter reviewed.
§ 2204(3) states that determinations of the Archivist to release records “shall not be subject to judicial review, except as provided in subsection (e) of this section.” That subsection (e) then states:
The United States District Court for the District of Columbia shall have jurisdiction over any action initiated by the former President asserting that a determination made by the Archivist violates the former President’s rights or privileges.
To summarize, the statute provides a general bar to any judicial review carving out a narrow exception to allow judicial review by the District Court for the District of Columbia. That Court has already conducted that review and ruled against Trump on the merits. The Court of Appeals is now apparently concerned that the general bar to judicial review now precludes its own review of the issue because the statutory exception is expressly confined only to the District Court.
In its order directing this briefing the Court of Appeals cites the case of National Coalition to Save Our Mall v. Norton 269 F.3d 1092 (2001). In that case Congress ordered the construction of a memorial honoring World War 2 veterans. The Coalition sued to block the construction. As the lawsuit was pending Congress passed another stating that there could be no judicial review of the matter. Congress was in a hurry to clear obstacles to construction because Congress wanted the memorial built while some veterans of the war still lived. The court found that the “the Act withdrew our subject matter jurisdiction over the statutory claims, and therefore that we lack jurisdiction to entertain them.”
In the coalition case the Court also found that rescinding of jurisdiction did not violate Article III of the Constitution. This is quite clear from Article III itself. Under Section 2, Article III’s extension of appellate jurisdiction of the courts is expressly subject “such exceptions, and under such regulations as the Congress shall make.” The Supreme Court apparently found no Constitutional offense denying cert and thereby refusing to hear the case.
Trump will likely argue that in granting jurisdiction to the District Court that this implied jurisdiction for the Court of Appeals on appeal. That statutory language certainly implies no such thing and the stronger argument would be that the general bar on court jurisdiction is now applicable. Further, such a bar would be sensible as Congress may well have anticipated that requests of Archivist records could be time sensitive and Congress accordingly deliberately sought to prevent the release of such information from being subject to the delays of protracted appeals.
If the Court of Appeals accepts this reasoning Trump will not even be entitled to a review of his appeal on the merits. I believe he would also lose on the merits, but if the court lacks subject matter jurisdiction that is the endgame.