Former President Donald Trump‘s attorneys are framing his attempt to keep secret records from his presidency as a clash between the executive and legislative branches that could give Congress lopsided power, according to Trump’s argument brief in the major court case related to the House’s January 6 investigation.
The court choosing not to stop the House select committee from accessing presidential records — which the Biden administration supports — would be “forever changing the dynamics between the political branches,” Trump’s legal team wrote. “In these hyper- partisan times, Congress will increasingly and inevitably use this new weapon to perpetually harass its political rival.”
Some of the records Trump has sought to keep secret include White House visitor records, call logs and notes from his top advisers related to January 6 and his claims that the 2020 presidential election was stolen, according to a sworn declaration from the National Archives.
Trump’s filing to the DC Circuit Court of Appeals on Tuesday is the first time he’s framed his argument in the major separation of powers appeal.
The former President’s arguments build upon claims he’s already made in court unsuccessfully. In the appeal, Trump says he should have the ability to protect some records from his presidency by claiming executive privilege, and that the House’s reasons for seeking the records aren’t strong enough. A ruling that doesn’t allow former presidents to protect their documents, his legal team adds, “will have a direct and immediate impact on the advice given to presidents, from President Biden and all those that follow him,” according to the court filing.
Trump also seizes upon an idea that the lower court judge, Tanya Chutkan of the DC District Court, raised during a previous round in court, where she dinged the House for the broadness of its requests for information in the January 6 probe.
“Congressional power is not limitless, regardless of presidential dictate,” Trump’s team wrote on Tuesday.
Trump lost the case at the trial-court level. The appeals court in the DC Circuit will hear arguments later this month on whether Trump as a former president can control records the National Archives is set to give to the House.
Chutkan previously ruled against Trump on essentially all of his arguments. She found that his wishes couldn’t overcome the current president’s decision to release the records to the House, noting “presidents are not kings.”
The House and the Biden administration, which represents the Archives, are set to file their responses to Trump’s arguments next week. Three judges from the DC Circuit, Patricia Millett, Robert Wilkins and Ketanji Brown Jackson, who were all appointed by Democratic presidents, will hear oral arguments on November 30.
As of now, they have temporarily stopped the National Archives from releasing the Trump-era records. Jackson previously wrote, in a ruling she made against Trump years ago on a separate executive privilege case, that “presidents are not kings” — a strong signal that he will have a difficult case to make before the appeals court.
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