Former President Donald Trump got a last-minute reprieve to stop the House select committee investigating January 6 from obtaining his White House documents as scheduled on Friday.
A three-judge panel from the DC Circuit Court of Appeals, all appointed by Democrats, put the transfer on hold Thursday and set oral arguments for later this month.
Here’s what to know:
What the House wants
The House select committee, which is probing the events leading up to and on January 6, has sent requests for information to a number of federal agencies, including the National Archives, the custodian of the Trump administration’s White House records.
The committee asked for “all documents and communications within the White House” on that day, including call logs, schedules and meetings with top officials and outside advisers, including Rudy Giuliani.
When can the House get the records?
The National Archives was set to send 46 documents over which Trump claims executive privilege on Friday. It has already handed over 90 non-contested records.
Friday’s handoff would have included White House call logs, video logs and schedules related to January 6 as well as three pages of handwritten notes from Trump’s then-chief of staff.
More than 700 documents would come later in the month and beyond.
What Trump wants
To keep records locked up with the National Archives.
He’s claiming executive privilege over certain documents and says the January 6 committee is a partisan exercise led by Democrats.
“The disagreement between an incumbent President and his predecessor from a rival political party highlights the importance of executive privilege and the ability of Presidents and their advisers to reliably make and receive full and frank advice, without concern that communications will be publicly released to meet a political objective,” Trump’s lawyers wrote.
What does the Biden White House say?
The Biden White House doesn’t want to get in the way and has said it won’t assert executive privilege to stop the document transfer.
Earlier this week, Judge Tanya Chutkan ruled that it’s basically the Biden White House’s choice to make. And Biden wants to hand over the docs.
“Presidents are not kings, and Plaintiff is not President,” Chutkan wrote on Tuesday night.
“The court holds that the public interest lies in permitting – not enjoining – the combined will of the legislative and executive branches to study the events that led to and occurred on January 6, and to consider legislation to prevent such events from ever occurring again,” Chutkan added in a 39-page opinion.
Presidential privilege “exists for the benefit of the Republic, not any individual,” she wrote.
What happened Thursday?
Trump filed an emergency motion just before noon, asking the DC Circuit Court of Appeals to block the handover while it considers his forthcoming appeal. A three-judge court panel granted the motion and set a briefing schedule and oral arguments for November 30.
In a two-page order, the three judges on the panel, all nominated by Democrats, wrote, “The purpose of this administrative injunction is to protect the court’s jurisdiction to address appellant’s claims of executive privilege and should not be construed in any way as a ruling on the merits.”
Did you say all Democratic-nominated?
Yes. The judges who signed the order comprise two nominated by former President Barack Obama – Patricia Millett and Robert Wilkins – as well as President Joe Biden-nominated Judge Ketanji Brown Jackson, a rumored possible nominee to the Supreme Court.
They’re not the three Trump would have chosen, to say the least. But that could end up working to his advantage.
Doesn’t that eat up time?
Yes, which appears to be part of Trump’s strategy.
In legal time, they’re moving fairly quickly, but from the former President’s perspective, every day without a document dump to Congress is a win.
Trump wants to draw out the process as long as humanly possible: have arguments in the appeals court, then at the Supreme Court if necessary.
He used the same techniques to keep the House from getting his tax records and other documents, and to prevent officials from testifying, and every step of the legal process can take weeks or months.
What happens if Trump loses at the appeals court?
With oral arguments on November 30, a ruling likely wouldn’t come from the three-judge panel until early December.
The losing party then has a couple of options. It can ask the court to hear the appeal en banc – that is, ask the full appeals court to review the case, rather than just the three judges. Should the court agree to the request, you’d see more filings, more debate and possibly oral arguments – and more time off the clock. (The full court can also just say “no thanks” to the request.)
Or, after the three-judge panel rules, and assuming it doesn’t go to the full court, the loser can go to the Supreme Court.
There, we’d likely go through the same procedure, but through the court’s “shadow docket,” where the justices often – but don’t always – move quickly.
What’s this about ‘as the appeals play out’?
At the heart of this is still Trump’s attempt to convince the courts nothing should be handed over that he doesn’t want to hand over because of executive privilege.
As of now, he has a temporary block, but that’s not a long-term solution.
When Trump actually files his appeal on the executive privilege claims, the same routine applies – it will start with consideration by a three-judge panel of the appeals court and go from there.
Then, the loser before the appeals panel has options to continue with more appeals, including asking the Supreme Court to look at everything again.
But doesn’t that take up a lot of time?
You’re catching on.
So let’s say the House eventually gets the docs it wants; can we see them too?
That’d be up to the House select committee. But no matter what, its members would see them before the rest of us.
And if they don’t get them and the Republicans win in the 2022 midterms?
The select committee is expected to be out of business.