A federal judge expressed deep skepticism of former President Donald Trump’s arguments that he can keep documents from his White House secret during an historic court hearing on Thursday related to the January 6 riot.
Judge Tanya Chutkan pressed Trump’s lawyers on why, as a former President, he has any right to control the public access to hundreds of pages of records, especially as the House of Representatives investigates the insurrection.
“Are you really saying that the President’s notes, talking points, telephone conversations, on January 6, have no relation to the matter on which Congress is considering legislation?” Chutkan asked. “The January 6 riot happened in the Capitol. That is literally Congress’ house.”
Chutkan, however, also suggested the House’s request could be too broad.
Trump has asked the DC District Court to block the National Archives from giving more than 700 pages of documents to the House Select Committee investigating January 6 and his efforts to overturn the 2020 election. He’s claimed the House’s investigation is illegitimate, and that his role as a former President should give him control over reviewing and deciding upon access to the records.
The Biden administration has approved of handing them over to the House select committee beginning next week.
Trump’s lawyers are even attempting to keep White House visitors logs secret – the types of records that past and even the current presidential administration have released.
“The former President has rights,” Justin Clark, an attorney for Trump, argued.
Chutkan also harshly questioned Trump’s request for the court to look at every document one by one – “You’re talking years,” she said – and an argument his attorney made that the White House records should theoretically be more guarded than even Trump’s personal tax records, which he is still fighting in court to keep secret.
“Congress here has not requested private information,” Chutkan said. “These documents are sought to further Congress’ oversight into the events of January 6. They only seek documents concerning governmental activity.”
The hearing may be the pivotal moment in a potentially historic legal fight about the authority of a former president, the House’s investigative power and the reach of executive privilege.
In the short term, the case also may have huge implications for the bipartisan House investigation, which is pushing for records and witnesses before the midterm elections take place next year. Without access to the documents, the House could be hampered significantly in its fact-finding.
Judge suggests House’s requests are too broad
After grilling Trump’s lawyers, Chutkan challenged the House Democrats’ lawyer on the breadth of the documents that were requested by the committee – a key issue, because the former President has claimed the request was so massive that it is clearly a political fishing expedition.
Chutkan acknowledged that “some of these requests seem very narrowly tailored.” But she said on a few occasions during the hearing that other parts of the committee’s request covered a wide scope of records, saying it was “alarmingly broad,” “very broad,” and “really broad.”
Congress has broad authority to demand documents, but “there has to be some limit,” she said.
She said a request for Trump’s polling data from summer 2020 was “tangential” to the January 6 investigation. She also zeroed in on a request for documents from April 2020, and asked House Democrats’ top lawyer Doug Letter to explain how those materials were tied to the insurrection.
“We think, maybe, this all ties in with, leading up to this, the fomenting of it, the building a groundswell of feeling that this election was going to be tainted,” Letter said, alluding to Trump’s comments early on during the pandemic that the election would be rigged by mail-in voting.
Letter owned the fact that some of the requests were broad, but said “that’s for Congress to decide,” and said the federal courts shouldn’t tell lawmakers how they should run their inquiry.
Chutkan also made the point that to the House that some of the things they may want to see from the Trump White House they don’t really need, because Trump was already making his intentions clear, publicly. She especially questioned a House request for polling data.
When Letter described how the House sought any information that could illuminate why the then-President was tweeting about election fraud even before the election, the judge quipped, “I’m not sure there’s an answer why the President was tweeting whatever he was tweeting.”
In court, the House has cast its investigation as one of its most critical tasks in history. “In 2021, for the first time since the Civil War, the Nation did not experience a peaceful transfer of power,” lawyers for the House wrote over the weekend. “A peaceful transfer of power from one President to another is crucial to the continuation of our democratic government. It is difficult to imagine a more critical subject for Congressional investigation, and Mr. Trump’s arguments cannot overcome that pressing legislative need.”
Any result is likely to be appealed, but the clock will be ticking for both the House and for Trump.
The National Archives, a part of the executive branch that inherited Trump’s presidential records after he left office, has already decided the House should get access to the records from Trump’s term as President. The agency is set to turn those over beginning next week, on November 12, unless Chutkan or an appeals court orders otherwise.
Trump has used court system before
Trump has turned to the court system several times in recent years to slow down or block Congress from accessing records he believes should stay private. The courts are still working out many of those disputes, such as in cases related to his personal accounting firm’s work, his IRS tax returns and his company’s banking records.
While President, he was able to hold off House subpoenas of his closest advisers using broad privilege claims and the Justice Department’s backing. And even before Trump’s presidency, lawsuits over executive privilege in document collections have dragged on for years.
But the issues about executive privilege that Trump raises now put the court in a novel position weighing the needs of the House against his pleas for privacy for his now-completed time in office.
“Permitting the expansive request here would harm future presidents and their close aides by allowing invasive congressional fishing expeditions that will certainly chill candid advice and harm the institution of the presidency,” Trump’s lawyers wrote to the court this week.
The records Trump wants to keep secret at this time appear to be a treasure trove of notes from his top advisers related to his insistence the election was stolen and his reaction to his supporters attacking the US Capitol on January 6. They include parts of the files from chief of staff Mark Meadows, from whom the committee has been seeking testimony, and other key figures like press secretary Kayleigh McEnany. In recent weeks, Meadows has engaged with the House but hasn’t come forward to speak – an apparent stalemate that could shift depending on the Trump court case’s outcome.
The Archives has given a taste of what Trump is trying to protect in a list, down to the page count, of the handwritten memos, draft public statements, call logs to Trump and former Vice President Mike Pence, White House visitor records and more from the files of key White House officials.
Those types of records, if obtained by the House, could answer some of the most closely guarded facts of what happened minute by minute between Trump and other high-level officials, including people around him watching the siege and those officials who were under attack.
The Biden White House has decided it wouldn’t asserted executive privilege on the records the Archives has reviewed so far, citing the extraordinary situation of the attack on Congress.
The Archives continues to work through Trump’s papers and set dates for them to be shipped to Congress.
“President Biden’s sober determination that the public interest requires disclosure is manifestly reasonable, and his to make,” lawyers for the Biden administration have written in court.
Trump is trying to keep secret more than 700 pages from the files of his closest advisers up to and on January 6, according to a sworn declaration from the National Archives’ B. John Laster.
Those records include working papers from then-White House chief of staff Mark Meadows, the press secretary and a White House lawyer who had notes and memos about Trump’s efforts to undermine the election.
In the Meadows documents alone, there are three handwritten notes about the events of January 6 and two pages listing briefings and telephone calls about the Electoral College certification, the archivist said.
Laster’s outline of the documents gave a glimpse into the paperwork that would reveal goings-on inside the West Wing as Trump supporters gathered in Washington and then overran the US Capitol on January 6.
Trump is also seeking to keep secret 30 pages of his daily schedule, White House visitor logs and call records, Laster wrote. The call logs, schedules and switchboard checklists document “calls to the President and Vice President, all specifically for or encompassing January 6, 2021,” Laster said.
The records Trump wants to keep secret also include draft speeches, a draft proclamation honoring two police officers who died in the siege and memos and other documents about supposed election fraud and efforts to overturn Trump’s loss of the presidency.
A lawyer for the Biden administration was in rare alignment with the House, advocating for the disclosure of the records and against Trump at the hearing on Thursday.
“The former President does not have a freestanding right to challenge the entire legislative venture,” Elizabeth Shapiro, a Justice Department attorney representing the National Archives, said in court.
She also noted that the records Trump wants to protect will be public someday. The Archives’ policies typically keep White House records restricted for 12 years, she said, but branches of government can get access to them before that.
“These are not documents where privilege and confidentiality will survive forever. Far from it,” she said.
This story has been updated with details from the hearing.