Editor’s Note: Norman Eisen, a former ambassador to the Czech Republic and former President Barack Obama’s “ethics czar,” was special impeachment counsel to House Judiciary Committee in 2019-2020. Joanna Lydgate is the former chief deputy attorney general for the state of Massachusetts. Eisen is chair and Lydgate is CEO of the States United Democracy Center. E. Danya Perry is a founding partner of Perry Guha LLP, a litigation boutique focused on civil and criminal trial practice and white collar investigations. She was a former federal prosecutor and served as chief of investigations for New York state’s Moreland Commission on Public Corruption. The opinions expressed here are their own. View more opinion on CNN.
On Tuesday evening, US District Court Judge Tanya Chutkan refused former President Donald Trump’s request to block the National Archives from releasing records that could help Congress understand what happened leading up to and on January 6, when a Trump-supporting mob overran the US Capitol. On Wednesday, he asked again so he could pursue his appeal, and she again refused.
Chutkan’s Tuesday decision denying Trump’s request for a preliminary injunction was right, and it will likely be upheld on appeal. The only question is when – and that timing matters here.
This case must not take years to percolate through the appellate courts as prior House subpoena cases have done. The House Committee investigating January 6 is doing everything it can to gather information quickly, and the nation deserves timely answers.
Part of the reason the case can move so briskly is that the opinion was indisputably correct. Trump’s argument for concealing presidential papers hinges on the claim that he, as a former president, can unilaterally assert privilege over records from his administration.
Of course, he cannot. Chutkan held that the person who is best positioned to decide whether the presidency may assert the privilege is the current president, whom the people elected to do that job. As Trump chronically refuses to admit, that person is not Trump. Joe Biden is the President, and he has notified the national archivist – who holds the Trump administration’s records – that he waives the privilege.
There was another good reason why Chutkan refused to issue a preliminary injunction: Trump cannot show that he’ll be harmed – much less “irreparably” harmed, as the legal standard requires – if the records are released. Trump is now a private citizen, and executive privilege isn’t about protecting one man from embarrassment. It’s about protecting the office of the president – and, through it, the welfare of the nation – by ensuring that the president has the deliberative space to do his or her job.
Trump, like all would-be autocrats, seems to think that he retains the presidency – so, of course, he thinks he can assert executive privilege in perpetuity, even after leaving office. Chutkan resoundingly rejected that. She reminded us that the presidency is an office that serves the nation. And right now, the nation needs insight into what certainly looks like a coup attempt on January 6.
Chutkan also found, in her 39-page Tuesday decision, that Congress had a proper legislative purpose in requesting the records. She wrote, “While broad, these requests, and each of the other requests made by the Committee, do not exceed the Committee’s legislative powers.” That’s because the bipartisan select committee that requested the records is charged not just with investigating January 6 but also with exploring legislation to shore up our democracy. The records will help the committee to recommend and craft any needed legislation.
The records will be released Friday, unless an appellate court intervenes. Chutkan will not do it – when Trump went back to ask, she refused to block the release while Trump takes his appeal to the DC Circuit Court of Appeals.
So, Trump will now ask the appellate court for an “injunction pending appeal” – an order forbidding the National Archives from releasing the records during the litigation. That request, and the appeal itself, will set off a hurried and complicated scramble, but the short of it is that Trump is likely to get at least a brief administrative injunction.
That common practice will not mean anything about whether Trump is likely to prevail in the long run. He almost certainly will not for all the reasons Chutkan persuasively articulated. The administrative injunction just keeps the archivist from releasing the records until the appellate court has an opportunity to hear Trump out and decide whether to issue a longer-term injunction pending appeal.
The DC Circuit should not do so – nor should it entertain any prolonged delays. Trump’s claims are nonsense. He is likely to try to play out the clock in the hopes the House changes hands in 14 months and the subpoena is withdrawn before appeals are concluded.
The appellate court should do everything it can to decide Trump’s appeal quickly. Congress and the administration – the appellees here – should strenuously resist long delays and seek expedited briefing at every stage of the appellate process. The press and the public should vigorously back them as a matter of top national importance.
It’s been 10 months since January 6, and we still do not have a clear picture of how far the defeated former President was willing to go to overturn a democratic election. We deserve answers, as well as legislation based on those answers to prevent this from ever happening again.
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During Trump’s presidency, interminable appellate delays prevented Congress from getting documents and witnesses for its impeachment inquiries. Subpoenas for tax records and witnesses were fought endlessly through the courts. Those delays hurt the public – they prevented congressional prosecutors from putting on a full case about Trump’s alleged obstruction of justice, for instance.
A different path is possible, as Chutkan just showed us – going from briefing to a compelling and carefully reasoned decision in just over three weeks. Looking further back, to the scandal that set the stage for archiving and disclosing presidential records: On the Watergate tapes, the subpoena was issued on April 18, 1974; the trial court ruled on May 20, 1974; and the US Supreme Court ruled on July 24, 1974. Three months and six days in all from start to finish. Equal or greater speed is possible here if the parties and all of us strongly demand it.
The American people deserve answers. The courts are capable of providing them quickly, and as a nation, we must insist upon it for the sake of preserving our democracy.