Date: 2025-01-15 Page is: DBtxt003.php txt00021238
US Politics
Executive Secrecy
POLITICS | Judge Rejects Trump’s Bid to Keep Papers Secret in Jan. 6 Inquiry
Former President Donald J. Trump can assert executive privilege, a judge ruled, but President Biden is not obliged to honor that assertion.Credit...Oliver Contreras for The New York Times
Original article: https://www.nytimes.com/2021/11/09/us/politics/trump-january-6-committee.html POLITICS | Judge Rejects Trump’s Bid to Keep Papers Secret in Jan. 6 Inquiry Judge Rejects Trump’s Bid to Keep Papers Secret in Jan. 6 Inquiry But a Trump lawyer has signaled an intent to appeal the ruling, which raises novel issues about an ex-president’s executive privilege powers. By Charlie Savage Nov. 9, 2021
WASHINGTON — A federal judge on Tuesday night rejected a bid by former President Donald J. Trump to keep secret papers about his actions and conversations leading up to and during the Jan. 6 attack on the Capitol by his supporters.
In a 39-page ruling, Judge Tanya S. Chutkan of the U.S. District Court for the District of Columbia held that Congress’s constitutional oversight powers to obtain the information prevailed over Mr. Trump’s residual secrecy powers — especially because the incumbent, President Biden, agreed that lawmakers investigating the Jan. 6 riot should see the files.
Mr. Trump “does not acknowledge the deference owed to the incumbent president’s judgment. His position that he may override the express will of the executive branch appears to be premised on the notion that his executive power ‘exists in perpetuity,’” Judge Chutkan wrote. “But presidents are not kings, and plaintiff is not president.”
Mr. Trump retained the right to assert that his records were privileged, she added, but Mr. Biden was not obliged to honor that assertion. The incumbent president, she said, is better situated to protect executive branch interests, and Mr. Trump “no longer remains subject to political checks against potential abuse of that power.”
The ruling does not necessarily mean that the National Archives will turn over the materials to the House committee investigating Jan. 6 any time soon. The case raises novel issues about the scope and limits of a former president’s executive privilege authority, and it is likely that it will ultimately be resolved by the Supreme Court.
In a posting on Twitter, Taylor Budowich, a spokesman for Mr. Trump, said the case was destined to be appealed. He said Mr. Trump was committed to defending the right of past presidents — as well as present and future ones — to assert executive privilege and “will be seeing this process through.”
But in a statement after the ruling, Representative Bennie Thompson, the Mississippi Democrat who is chairman of the committee, called the lawsuit “little more than an attempt to delay and obstruct our investigation.”
“Along our country’s history, the executive branch has provided Congress with testimony and information when it has been in the public interest,” he said. “This evening’s ruling is consistent with that tradition. And in my view, there couldn’t be a more compelling public interest than getting answers about an attack on our democracy.”
The Jan. 6 committee has demanded that the National Archives and Records Administration turn over detailed records about Mr. Trump’s every movement and meeting on the day of the assault, when Mr. Trump led a “Stop the Steal” rally and his supporters then sacked the Capitol in an attempt to block Congress from certifying Mr. Biden’s Electoral College victory.
Mr. Trump — who pursued a strategy of stonewalling all congressional oversight subpoenas while in office, running out the clock on such efforts before the 2020 election — has instructed his former subordinates to defy subpoenas from the Jan. 6 committee and filed a lawsuit seeking to block the National Archives from turning over files from his White House.
Last week, Judge Chutkan, a 2014 Obama appointee, had signaled skepticism about Mr. Trump’s legal arguments. Mr. Trump’s lawyer asserted that his residual executive privilege powers meant the courts should block Congress from subpoenaing the files, notwithstanding Mr. Biden’s decision not to assert executive privilege over them in light of the circumstances.
Mr. Trump’s lawyer had argued that the public interest would be served by letting the former president keep the documents secret to preserve executive branch prerogatives. But Judge Chutkan wrote that his arguments did not “hold water” in light of Mr. Biden’s support for making them public and Congress’s need to investigate the attack without undue delays.
Congress and the Biden administration, she noted, “contend that discovering and coming to terms with the causes underlying the Jan. 6 attack is a matter of unsurpassed public importance because such information relates to our core democratic institutions and the public’s confidence in them. The court agrees.”
Earlier this week, Mr. Trump’s lawyer, Jesse R. Binnall, demonstrated an intent to keep going by asking Judge Chutkan to impose an emergency injunction on the National Archives barring it from turning over the records while he appealed the matter to the U.S. Court of Appeals for the District of Columbia Circuit.
Mr. Biden has instructed the head of the National Archives to turn over the first tranche of the materials subpoenaed by the Jan. 6 committee on Nov. 12, unless there is a court order by then blocking him from doing so.
Noting that Nov. 11 is a federal holiday, Mr. Binnall said he wanted to make sure there was an order preserving the status quo by then, and said he would file a request before the D.C. Circuit for such an injunction if Judge Chutkan did not act by Nov. 10.
“This case should be decided after thorough but expeditious consideration pursuant to America’s judicial review process, both before this court and on appeal, not by a race against the clock,” Mr. Binnall wrote, adding: “This is not a game.”
Judge Chutkan denied that request earlier Tuesday, saying it was premature since she had not yet issued any ruling. But she promised to rule “expeditiously in this matter” and said she would consider a motion for a stay by the losing party at that point.
Luke Broadwater contributed reporting from Washington.
© 2021 The New York Times Company
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About the Federal Judge ... Judge Tanya Chutkan
Good morning,
We live in an era when it’s particularly important to recognize defenders of democracy in real time. In that light we open today’s newsletter with a tip of our hat to Tanya Chutkan.
Who is she? She’s the federal judge who ruled Tuesday that Donald Trump’s executive privilege claims around any January 6 documents he is sitting on were bogus. Trump had a right to make such an assertion, she ruled, but the sitting administration was really the controlling authority here. This line from her ruling sums it all up nicely: “Presidents are not kings, and plaintiff is not president.”
Chutkan was born in Jamaica in 1962. She had a distinguished career in Washington law firms until Barack Obama nominated her to the bench in 2014. She was confirmed 95–0. She’s the judge who sentenced Russian agent and NRA infiltrator-booster Maria Butina to 18 months. And she’s been clear in recent weeks about the stakes regarding January 6, saying of one defendant: “There have to be consequences for participating in an attempted violent overthrow of the government, beyond sitting at home. The country is watching.… If Mr Mazzocco walks away with probation and a slap on the wrist, that’s not going to deter anyone from trying what he did again.”
As for the consequences of the ruling, well … the National Archives is in possession of the relevant documents, and NPR reported Wednesday morning that they could be released as early as this week. Trump’s lawyers will of course appeal. The whole plan of the Trump team is to stall until after the midterms, when they hope the GOP takes the House and kills the commission—and, by the way, finds some flimsy excuse to start impeaching Joe Biden, which they will most certainly do.
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Understand the Supreme Court’s Momentous Term
- The Texas abortion law. After the court let Texas effectively outlaw most abortions in a 5-4 decision, the justices heard arguments that could allow it to reverse course. The case puts Justice Brett Kavanaugh in the spotlight as the most likely member to switch sides.
- The Mississippi abortion case. The court is poised to use a challenge to a Mississippi law that bars most abortions after 15 weeks to undermine and perhaps overturn Roe v. Wade, the 1973 decision that established a constitutional right to abortion.
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- A test for Chief Justice Roberts. The highly charged docket will test the leadership of Chief Justice John G. Roberts Jr., who lost his position at the court’s ideological center with the arrival last fall of Justice Amy Coney Barrett.
- A drop in public support. Chief Justice Roberts now leads a court increasingly associated with partisanship. Recent polls show the court is suffering a distinct drop in public support following a spate of unusual late-night summer rulings in politically charged cases.