Appeals Court Smacks Down Trump Effort To Block Jan. 6 Probe

The move allows a subpoena for Trump's White House records held by the National Archives to go ahead.
US President Donald Trump speaks to supporters from The Ellipse near the White House on January 6, 2021, in Washington, DC. - Thousands of Trump supporters, fueled by his spurious claims of voter fraud, are flooding ... US President Donald Trump speaks to supporters from The Ellipse near the White House on January 6, 2021, in Washington, DC. - Thousands of Trump supporters, fueled by his spurious claims of voter fraud, are flooding the nation's capital protesting the expected certification of Joe Biden's White House victory by the US Congress. (Photo by MANDEL NGAN / AFP) (Photo by MANDEL NGAN/AFP via Getty Images) MORE LESS
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A D.C. federal appeals court denied Trump’s attempt to block the Jan. 6 investigation, allowing a subpoena for White House records about the Jan. 6 insurrection to proceed.

Trump is expected to appeal the ruling, issued Thursday afternoon after the court held oral arguments on Nov. 30.

The decision allows three tranches of documents identified by the National Archives to be released to the committee.

It was a unanimous decision from the three-judge panel. Judges Patricia Millett, Robert Wilkins, and Ketanji Brown Jackson gave Trump a 14-day stay in order for the former President to appeal the issue to the Supreme Court.

Millett wrote the opinion, offering a blistering description of the stakes of the investigation — and of Trump’s claim that he could contest a sitting president’s assertion of executive privilege.

In her conclusion, she cited Benjamin Franklin’s quote that the founding generation had bequeathed a republic — “if [we] can keep it.”

“The events of January 6th exposed the fragility of those democratic institutions and traditions that we have perhaps come to take for granted,” the 68-page opinion reads.

“Former President Trump has given this court no legal reason to case aside President Biden’s assessment of the Executive Branch interests at stake, or to create a separation of powers conflict that the Political Branches have avoided.”

Trump’s case rested on the claim that, as a former president, he could contest — and possibly override — Biden’s decision as a sitting president to say that records sought by the Jan. 6 committee were not subject to executive privilege, a brand of secrecy meant to allow the president to receive candid advice.

Legal experts saw his claim as quintessentially Trumpian: a ludicrous and likely-to-fail attempt to delay the investigation, but also a potentially grave threat to presidential accountability, should a court expand the privilege to former presidents.

The appeals court recognized that Trump had a right to press the claim of executive privilege, but kept with earlier precedent in saying that it’s the interests of the republic, and not any one president, that are at stake.

Trump, Millett wrote, wants a court to “intervene and nullify” Congress and Biden’s agreement to give the records to the investigation. “But essential to the rule of law is the principle that a former President must meet the same legal standards for obtaining preliminary injunctive relief as everyone else. And former President Trump has failed that task.”

The ruling offers one of the earliest higher court opinions dealing with both the insurrection and Trump’s role in it.

Millett wrote that “there is a direct linkage between the former President and the events of the day.”

That view colors the entire opinion. Millett described some of the records sought, including “a draft Executive Order on the topic of election integrity” and “presidential activity calendars and a related handwritten note for January 6, 2021.”

Biden’s decision to waive privilege on the records comes “at a time of pressing national need,” the opinion reads.

“Lives were lost; blood was shed; portions of the Capitol building were badly damaged; and the lives of members of the House and Senate, as well as aides, staffers, and others who were working in the building, were endangered,” Millett wrote. “They were forced to flee, preventing legislators from completing their constitutional duties until the next day.”

Millett also described the White House as “the hub for intelligence about threats of violent action against the government.”

Apart from understanding “intelligence failures,” Millett wrote, the panel has “sound reasons for seeking presidential documents in particular” as part of the probe.

The appeals court managed to rule on the issue largely without weighing in on Trump’s claim that his rights as a former President should equal those of Biden’s, as a sitting president. Rather, the court found that Trump failed to state any real concern that they could rule on.

“But we need not conclusively resolve whether and to what extent a court could second guess the sitting President’s judgment that it is not in the interesting of the United States to invoke privilege,” the opinion, issued lightning-fast in appeals court time, reads.

Millett added that per the tests “advocated by former President Trump, the profound interests in disclosure advanced by President Biden and the January 6th Committee far exceed his generalized concerns for Executive Branch confidentiality.”

Read the decision here:

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