A three-judge panel held that Congress’s oversight powers, backed by President Biden’s decision not to invoke executive privilege, outweighed Mr. Trump’s residual secrecy powers.
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By Charlie Savage
Dec. 9, 2021, 5:21 p.m. ET
WASHINGTON — A federal appeals court ruled on Thursday that Congress may see White House records of former President Donald J. Trump’s communications and movements related to the Capitol attack on Jan. 6, rejecting his claim that the material should remain secret.
In a 68-page ruling, a three-judge panel of the United States Court of Appeals for the District of Columbia held that Congress’s oversight powers, backed by President Biden’s decision not to invoke executive privilege over the material, outweighed Mr. Trump’s residual secrecy powers.
“On the record before us, former President Trump has provided no basis for this court to override President Biden’s judgment and the agreement and accommodations worked out between the political branches over these documents,” Judge Patricia A. Millett wrote. “Both branches agree that there is a unique legislative need for these documents, and that they are directly relevant to the committee’s inquiry into an attack on the legislative branch and its constitutional role in the peaceful transfer of power.”
Mr. Trump is almost certain to appeal the ruling to the Supreme Court. If the appeals court panel declines to stay its ruling while that process plays out, the case may swiftly reach the justices as an emergency request to prevent the National Archives from immediately turning over the material.
The case has raised novel and untested constitutional question about the scope and limits of a former president’s ability to keep records from his administration secret when his successor declines to invoke executive privilege.
In response to the attack, Mr. Biden and Congress “have each made the judgment that access to this subset of presidential communication records is necessary to address a matter of great constitutional moment for the Republic,” Judge Millett wrote. “Former President Trump has given this court no legal reason to cast 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.”
The courts have been grappling with what general rule or legal test should govern not only this dispute but any future ones in which a sitting president and a former one disagree over whether to invoke executive privilege over particular documents.
There is no clear Supreme Court precedent to determine what should happen in such a dispute, which arose when the House committee investigating the Capitol attack subpoenaed the National Archives for records showing Mr. Trump’s communications and movements leading up to and during the crisis.
After Mr. Biden declined to invoke executive privilege to block the subpoena, saying it was in the national interest for the oversight committee to see the records in light of the circumstances, Mr. Trump filed a lawsuit seeking to keep the files secret. A Federal District Court judge ruled in November that Congress should receive the files, prompting Mr. Trump to appeal.
Source: nytimes.com
