Yesterday, the D.C. Circuit Court of Appeals rejected former President Donald Trump’s claim of executive privilege, holding that the archivist of the United States could provide a tranche of Trump’s presidential records to the House’s “Select Committee to Investigate the January 6th Attack on the United States Capitol.”
In a unanimous ruling, the federal appellate court concluded that President Biden’s conclusion that “an assertion of executive privilege is not in the best interests of the United States” controlled and that the archivist, therefore, must hand over the first of three sets of documents requested. The court added, however, that it would await an assessment from the Biden administration before determining whether other sets of documents must likewise be handed over.
Judge Patricia Millett, a Barack Obama appointee, authored the 68-page opinion that fellow Obama appointee Robert Wilkins and Biden appointee Ketanji Brown Jackson joined in full. In rejecting Trump’s request that the court enjoin the archivist from providing the House Select Committee copies of his presidential papers, the federal appellate court considered the controlling preliminary injunction standard that asks whether the moving party—here Trump—has established a likelihood of success on the merits, shows “irreparable harm in the absence of preliminary relief,” demonstrates that the equities favor an injunction, and proves that the injunction is in the public interest.
The court’s analysis in Trump v. Thompson focused mainly on the first factor and whether Trump held a likelihood of success on the merits. He did not, according to the D.C. Circuit, which concluded Trump executive privilege claim failed because “a rare and formidable alignment of factors supports the disclosure of the documents at issue.”
“President Biden has made the considered determination that an assertion of executive privilege is not in the best interests of the United States given the January 6th Committee’s compelling need to investigate and remediate an unprecedented and violent attack on Congress itself,” the court said. Further, “Congress has established that the information sought is vital to its legislative interests and the protection of the Capitol and its grounds.” Finally, “the Political Branches are engaged in an ongoing process of negotiation and accommodation over the document requests,” the court explained, noting its hesitancy to circumvent that process.
Although the court considered the other preliminary injunction factors, those merely bolstered the court’s conclusion that Trump was not entitled to a preliminary injunction preventing the release of his documents.
Given the important legal issue in play, namely executive privilege, it seems likely Trump will seek review by the U.S. Supreme Court. In doing so, Trump’s legal team would be wise to follow the lead of the president’s former chief of staff, Mark Meadows, who just Wednesday filed a complaint in federal court against House’s January 6th Select Committee and the individual committee members.
Meadows’s lawsuit alleges the defendants are seeking to illegally compel Meadows to provide documents and testimony to the committee and that the committee illegally subpoenaed the former chief of staff’s cellular provider, Verizon Wireless.
Meadows took to the federal D.C. district court after the House’s Select Committee warned him that if he refused to provide the documents to the committee and to testify voluntarily, he would be cited for contempt. Verizon Wireless had also informed Meadows that it had received a subpoena from the committee and intended to provide Meadows’ private cellular information unless it received “a court document challenging the subpoena by December 15, 2021.”
Over the course of 40-plus pages, Meadows presents a litany of reasons the subpoenas are invalid, but his first argument—that the subpoenas are invalid because they were not “issued by a duly authorized committee”—both presents Meadows with a strong argument to quash the subpoenas and provides Trump fodder in his separate lawsuit and claim of executive privilege.
House Resolution 503 created the January 6, 2021, Select Committee, Meadows’s argument begins, then stressing that Section 2(a) of that resolution requires House Speaker Nancy Pelosi to “appoint 13 Members to the Select Committee, 5 of whom shall be appointed after consultation with the minority leader.” But “Speaker Pelosi has appointed only nine members to the Select Committee: seven Democrats and two Republicans,” the complaint alleges. “None of these members was appointed from the selection of five GOP congressman put forth by Minority Leader Kevin McCarthy,” Meadows’s lawsuit continues.
Because Speaker Pelosi failed to appoint the requisite number of members, as mandated by House Resolution 503, it was “not a duly constituted Select Committee,” Meadows’s lawsuit argues. Without establishing a duly constituted Select Committee, as mandated in the Resolution, the nine members lack the authority to act under House Resolution 503, the argument continues, including by issuing subpoenas under Section 5(c)(6) of House Resolution 503.
The D.C. Circuit Court of Appeals ignored the problem caused by Pelosi’s unprecedented refusal to seat Republican Reps. Jim Jordan and Jim Banks, which led to only two representatives with Rs behind their names, Liz Cheney of Wyoming and Adam Kinzinger of Illinois, agreeing to serve on the committee.
Further, while House Resolution 503 provides for business to be conducted by a quorum of members, the problem here is not the number of members participating but the number of congressmen appointed to the committee. Also, because House Resolution 503 requires the appointment of 13 members, Pelosi’s failure to appoint the requisite number of committee members means the select committee was never properly constituted. That failure, Meadows’ lawsuit argues, renders the Select Committee invalid and without the authority to issue subpoenas.
A court may hesitate to hold that the Select Committee was never properly constituted because Republicans, by refusing to accept committee appointments, prevented Pelosi from complying with House Resolution 503’s mandate that 13 members be appointed to the Select Committee. But such parliamentary maneuvers are par for the course for Congress, and courts readily require Congress and congressional committees to comply with their own rules.
Here, the Democrats didn’t: They failed to appoint five Republicans to the select committee as required by House Resolution 503. Unless there is a properly constituted select committee, the purported committee members should lack the authority provided under the resolution.
Pelosi’s refusal to seat Jordan and Banks on the select committee proves significant for a second reason that segues back to Trump’s case and his claim of executive privilege: It proves that the supposed probe into the events of January 6, 2021 is an unserious political ploy and a court should take that reality into account in balancing the competing interests.
Once in focus, one can see there is a strong interest in preserving executive privilege, and none in pushing a partisan dog and donkey show trial.