WASHINGTON — Lawyers for former President Donald Trump urged a federal appeals court Tuesday to honor his claim that executive privilege should prevent the House committee investigating the Jan. 6 riot at the U.S. Capitol from obtaining scores of White House documents.
The committee has asked the National Archives to turn over memos, e-mails, records of White House conversations and visitor logs as it searches for the origins of the attack.
Jesse Binnall, a lawyer for Trump, said that the committee had no proper legislative purpose for seeking the records and that it instead launched the investigation to "intimidate and harass President Trump and his closest advisers under the guise of investigating the events of January 6, 2021."
The committee sought the records from the National Archives because it maintains all documents from past administrations. Trump asserted executive privilege over some of the material, but President Joe Biden said the records should be released to Congress, citing the importance of the committee's work.
U.S. District Judge Tanya S. Chutkan ordered the archives to hand the material over, but the U.S. Circuit Court of Appeals for the District of Columbia granted a brief stay to take a longer look at the issue.
A major question is how much authority a former president has to assert executive privilege. The Supreme Court ruled in a dispute between former President Richard Nixon and the National Archives that former presidents retain some ability to assert the privilege. But it said the current president is in the best position to evaluate when such claims should be honored.
Trump's lawyers said Chutkan wrongly concluded that a sitting president has the sole power to decide when a claim of executive privilege should be honored.
"This decision would gut the foundation of executive privilege and hamstring all officials within the executive branch that rely upon the privilege for the proper functioning of the government," Binnall said in court documents filed Tuesday.
"Every President, cabinet official, and advisor would be hamstrung by the knowledge that a subsequent president from a rival political party could simply waive privilege and expose confidential executive communications to the world," he said.
Binnall also said the committee's request for documents was too broad, predating the Capitol attack by many months. Some of the requests seek records as far back as April 2020, as the administration was struggling to deal with the Covid-19 pandemic. "A President's need to receive full, frank, and confidential advice from his advisers is at its apex during times of crisis, like a worldwide pandemic," he said.
Lawyers for the House committee and the National Archives will file their written responses next week, and the appeals court will hear courtroom arguments Nov. 30. A decision is likely to follow shortly afterward, because the court is handling the case on an expedited basis.
