Donald Trump v. Bennie Thompson ( 2021 )

United States Court of Appeals
FOR THE DISTRICT OF COLUMBIA CIRCUIT
Argued November 30, 2021 Decided December 9, 2021
No. 21-5254
DONALD J. TRUMP, IN HIS CAPACITY AS THE 45TH PRESIDENT
OF THE UNITED STATES,
APPELLANT
v.
BENNIE G. THOMPSON, IN HIS OFFICIAL CAPACITY AS
CHAIRMAN OF THE UNITED STATES HOUSE SELECT
COMMITTEE TO INVESTIGATE THE JANUARY 6TH ATTACK ON
THE UNITED STATES CAPITOL, ET AL.,
APPELLEES
Appeal from the United States District Court
for the District of Columbia
(No. 1:21-cv-02769)
Jesse R. Binnall and Justin R. Clark argued the cause
and filed the briefs for appellant.
Douglas N. Letter, General Counsel, U.S. House of
Representatives, argued the cause for appellees Bennie
Thompson and the United States House Select Committee to
Investigate the January 6th Attack on the United States Capitol.
With him on the brief were Todd B. Tatelman, Principal Deputy
General Counsel, Stacie M. Fahsel, Associate General
2
Counsel, Eric R. Columbus, Special Litigation Counsel, and
Annie L. Owens, Mary B. McCord, and Joseph W. Mead,
Institute for Constitutional Advocacy and Protection,
Georgetown University Law Center.
Brian M. Boynton, Acting Assistant Attorney General,
U.S. Department of Justice, argued the cause for appellee
National Archives and Records Administration. With him on
the brief were Michael S. Raab and Gerard Sinzdak, Attorneys.
Mark R. Freeman, Sarah E. Harrington, and Elizabeth J.
Shapiro, Attorneys, entered appearances.
Elizabeth B. Wydra and Brianne J. Gorod were on the
brief for amici curiae Former Department of Justice Officials
in support of appellees.
Norman L. Eisen was on the brief for amici curiae
States United Democracy Center and Former Federal, State,
and Local Officials in support of appellees.
Nikhel S. Sus and Conor M. Shaw were on the brief for
amici curiae Citizens for Responsibility and Ethics in
Washington and Former White House Attorneys in support of
appellees.
John A. Freedman, Samuel F. Callahan, and Cameron
Kistler were on the brief for amici curiae Former Members of
Congress in support of appellees.
Kelly B. McClanahan was on the brief for amici curiae
Government Accountability Project, et al. in support of
appellees.
Before: MILLETT, WILKINS, and JACKSON, Circuit
Judges.
3
Opinion for the Court filed by Circuit Judge MILLETT.
MILLETT, Circuit Judge: On January 6, 2021, a mob
professing support for then-President Trump violently attacked
the United States Capitol in an effort to prevent a Joint Session
of Congress from certifying the electoral college votes
designating Joseph R. Biden the 46th President of the United
States. The rampage left multiple people dead, injured more
than 140 people, and inflicted millions of dollars in damage to
the Capitol.1 Then-Vice President Pence, Senators, and
Representatives were all forced to halt their constitutional
duties and flee the House and Senate chambers for safety.
The House of Representatives subsequently established
the Select Committee to Investigate the January 6th Attack on
the United States Capitol, and charged it with investigating and
reporting on the “facts, circumstances, and causes relating to”
the January 6th attack on the Capitol, and its “interference with
the peaceful transfer of power[.]” H.R. Res. 503, 117th Cong.
§ 3(1) (2021). The House Resolution also tasked the January
6th Committee with, among other things, making “legislative
recommendations” and proposing “changes in law, policy,
procedures, rules, or regulations” both to prevent future acts of
1
STAFF REP. OF S. COMM. ON HOMELAND SECURITY &
GOVERNMENTAL AFFS. & S. COMM. ON RULES & ADMIN., 117TH
CONG., EXAMINING THE U.S. CAPITOL ATTACK: A REVIEW OF THE
SECURITY, PLANNING, AND RESPONSE FAILURES ON JANUARY 6, at
29 (June 8, 2021) (“Capitol Attack Senate Report”); Hearing on
Health and Wellness of Employees and State of Damages and
Preservation as a Result of January 6, 2021 Before the Subcomm. on
the Legis. Branch of the H. Comm. on Appropriations (“House
Hearing”), 117th Cong., at 1:25:40–1:26:36 (Feb. 24, 2021)
(statement of J. Brett Blanton, Architect of the Capitol),
https://perma.cc/XS7N-MRG8.
4
such violence and to “improve the security posture of the
United States Capitol Complex[.]” Id. § 4(b)(1), (c)(2).
As relevant here, the January 6th Committee sent a request
to the Archivist of the United States under the Presidential
Records Act, 44 U.S.C. § 2205(2)(C), seeking the expeditious
disclosure of presidential records pertaining to the events of
January 6th, the former President’s claims of election fraud in
the 2020 presidential election, and other related documents.
This preliminary injunction appeal involves only a subset
of those requested documents over which former President
Trump has claimed executive privilege, but for which President
Biden has expressly determined that asserting a claim of
executive privilege to withhold the documents from the
January 6th Committee is not warranted. More specifically,
applying regulations adopted by the Trump Administration,
President Biden concluded that a claim of executive privilege
as to the specific documents at issue here is “not in the best
interests of the United States,” given the “unique and
extraordinary circumstances” giving rise to the Committee’s
request, and Congress’s “compelling need” to investigate “an
unprecedented effort to obstruct the peaceful transfer of power”
and “the most serious attack on the operations of the Federal
Government since the Civil War.” Letter from Dana A.
Remus, Counsel to the President, to David Ferriero, Archivist
of the United States (Oct. 8, 2021), J.A. 107–108 (“First Remus
Ltr.”); see also Letter from Dana A. Remus, Counsel to the
President, to David Ferriero, Archivist of the United States
(Oct. 8, 2021), J.A. 113 (“Second Remus Ltr.”); Letter from
Dana A. Remus, Counsel to the President, to David Ferriero,
Archivist of the United States (Oct. 25, 2021), J.A. 173–174
(“Third Remus Ltr.”).
5
The central question in this case is whether, despite the
exceptional and imperative circumstances underlying the
Committee’s request and President Biden’s decision, a federal
court can, at the former President’s behest, override President
Biden’s decision not to invoke privilege and prevent his release
to Congress of documents in his possession that he deems to be
needed for a critical legislative inquiry.
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. 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.
More specifically, the former President has failed to
establish a likelihood of success given (1) President Biden’s
carefully reasoned and cabined determination that a claim of
executive privilege is not in the interests of the United States;
(2) Congress’s uniquely vital interest in studying the January
6th attack on itself to formulate remedial legislation and to
safeguard its constitutional and legislative operations; (3) the
demonstrated relevance of the documents at issue to the
congressional inquiry; (4) the absence of any identified
alternative source for the information; and (5) Mr. Trump’s
failure even to allege, let alone demonstrate, any particularized
harm that would arise from disclosure, any distinct and
superseding interest in confidentiality attached to these
particular documents, lack of relevance, or any other reasoned
justification for withholding the documents. Former President
Trump likewise has failed to establish irreparable harm, and the
6
balance of interests and equities weigh decisively in favor of
disclosure.2
For those reasons, we affirm the district court’s judgment
denying a preliminary injunction as to those documents in the
Archivist’s first three tranches over which President Biden has
determined that a claim of executive privilege is not justified.
I
A
On November 3, 2020, Americans elected Joseph Biden
as President, giving him 306 electoral college votes. Then-
President Trump, though, refused to concede, claiming that the
election was “rigged” and characterized by “tremendous voter
fraud and irregularities[.]” President Donald J. Trump,
Statement on 2020 Election Results at 0:34–0:46, 18:11–18:15,
C-SPAN (Dec. 2, 2020), https://www.c-span.org/video
/?506975-1/president-trump-statement-2020-election-results
(last accessed Dec. 7, 2021). Over the next several weeks,
President Trump and his allies filed a series of lawsuits
challenging the results of the election. Current Litigation,
ABA: STANDING COMM. ON ELECTION LAW (April 30, 2021),
https://perma.cc/9CRN-2464. The courts rejected every one of
the substantive claims of voter fraud that was raised. See, e.g.,
Donald J. Trump for President, Inc. v. Secretary of
Pennsylvania, 830 F. App’x 377, 381 (3d Cir. 2020)
(“[C]alling an election unfair does not make it so. Charges
2
Given former President Trump’s failure to meet his burden,
we need not decide to what extent a court could, after a sufficient
showing of congressional need, second guess a sitting President’s
judgment that invoking privilege is not in the best interests of the
United States.
7
require specific allegations and then proof. We have neither
here.”).
As required by the Twelfth Amendment to the
Constitution and the Electoral Count Act, 3 U.S.C. § 15, a Joint
Session of Congress convened on January 6, 2021 to certify the
results of the election. 167 CONG. REC. H75–H85 (daily ed.
Jan. 6, 2021). In anticipation of that event, President Trump
had sent out a Tweet encouraging his followers to gather for a
“[b]ig protest in D.C. on January 6th” and to “[b]e there, will
be wild!” Donald Trump (@realDonaldTrump), TWITTER
(Dec. 19, 2020, 1:42 AM) (“Statistically impossible to have
lost the 2020 Election.”).
Shortly before noon on January 6th, President Trump took
the stage at a rally of his supporters on the Ellipse, just south
of the White House. J.A. 180. During his more than hour-long
speech, President Trump reiterated his claims that the election
was “rigged” and “stolen,” and urged then-Vice President
Pence, who would preside over the certification, to “do the
right thing” by rejecting various States’ electoral votes and
refusing to certify the election in favor of Mr. Biden. See
Donald J. Trump, Rally on Electoral College Vote Certification
at 3:33:05–3:33:10, 3:33:32–3:33:54, 3:37:19–3:37:29, C-
SPAN (Jan. 6, 2021), https://www.c-span.org/video/?507744-
1/rally-electoral-college-vote-certification (last accessed Dec.
7, 2021) (“January 6th Rally Speech”). Toward the end of the
speech, President Trump announced to his supporters that
“we’re going to walk down Pennsylvania Avenue * * * to the
Capitol and * * * we’re going to try and give our Republicans
* * * the kind of pride and boldness that they need to take back
our country.” Id. at 4:42:00–4:42:32. Urging the crowd to
“demand that Congress do the right thing and only count the
electors who have been lawfully slated[,]” he warned that
“you’ll never take back our country with weakness” and
8
declared “[w]e fight like hell and if you don’t fight like hell,
you’re not going to have a country anymore.” Id. at 3:47:20–
3:47:42, 4:41:17–4:41:33.
Shortly after the speech, a large crowd of President
Trump’s supporters—including some armed with weapons and
wearing full tactical gear—marched to the Capitol and
violently broke into the building to try and prevent Congress’s
certification of the election results. See Capitol Attack Senate
Report at 23, 27–29. The mob quickly overwhelmed law
enforcement and scaled walls, smashed through barricades, and
shattered windows to gain access to the interior of the Capitol.
Id. at 24–25. Police officers were attacked with chemical
agents, beaten with flag poles and frozen water bottles, and
crushed between doors and throngs of rioters. Id. at 28–29;
Hearing on the Law Enforcement Experience on January 6th
Before the H. Select Comm. to Investigate the January 6th
Attack on the U.S. Capitol, 117th Cong., at 2 (July 27, 2021)
(statement of Sgt. Aquilino A. Gonell, U.S. Capitol Police).
As rioters poured into the building, members of the House
and Senate, as well as Vice President Pence, were hurriedly
evacuated from the House and Senate chambers. Capitol
Attack Senate Report at 25–26. Soon after, rioters breached the
Senate chamber. Id. In the House chamber, Capitol Police
officers “barricaded the door with furniture and drew their
weapons to hold off rioters.” Id. at 26. Some members of the
mob built a hangman’s gallows on the lawn of the Capitol,
amid calls from the crowd to hang Vice President Pence.3
3
167 CONG. REC. E1133 (daily ed. Oct. 22, 2021) (statement of
Rep. Sheila Jackson Lee); 167 CONG. REC. H2347 (daily ed. May
14, 2021) (statement of Rep. Steve Cohen); Peter Baker & Sabrina
Tavernise, One Legacy of Impeachment: The Most Complete
9
Even with reinforcements from the D.C. National Guard,
the D.C. Metropolitan Police Department, Virginia State
Troopers, the Department of Homeland Security, and the FBI,
Capitol Police were not able to regain control of the building
and establish a security perimeter for hours. Capitol Attack
Senate Report at 26. The Joint Session reconvened late that
night. It was not until 3:42 a.m. on January 7th that Congress
officially certified Joseph Biden as the winner of the 2020
presidential election. Id.The events of January 6, 2021 marked the most significant
assault on the Capitol since the War of 1812.4 The building
was desecrated, blood was shed, and several individuals lost
their lives. See Capitol Attack Senate Report at 27–29.
Approximately 140 law enforcement officers were injured, and
one officer who had been attacked died the next day. Id. at 29.
In the aftermath, workers labored to sweep up broken glass,
wipe away blood, and clean feces off the walls.5 Portions of
the building’s historic architecture were damaged or destroyed,
including “precious artwork” and “[s]tatues, murals, historic
benches and original shutters[.]” House Hearing at 1
(statement of J. Brett Blanton, Architect of the Capitol).
Account So Far of Jan. 6, N.Y. TIMES (Feb. 13, 2021),
https://perma.cc/2Z47-5XHX.
4
Jess Bravin, U.S. Capitol Has a History of Occasional
Violence, but Nothing Like This, WALL ST. J. (Jan. 6, 2021),
https://perma.cc/TPW2-9CD8; Press Release, Liz Cheney,
Congresswoman, House of Representatives, A Select Committee Is
The Only Remaining Option To Thoroughly Investigate January 6th
(June 30, 2021), https://perma.cc/5RNC-Q6J3.
5
Baker & Tavernise, note 3, supra.
10
B
On June 30, 2021, the United States House of
Representatives created the Select Committee to Investigate
the January 6th Attack on the United States Capitol. H.R. Res.
503. The House directed the Committee to (1) “investigate the
facts, circumstances, and causes relating to the domestic
terrorist attack on the Capitol, including * * * influencing
factors that contributed to” it; (2) “identify, review, and
evaluate the cause of and the lessons learned” from the attack,
including “the structure, coordination, operational plans,
policies, and procedures of the Federal Government, * * *
particularly with respect to detecting, preventing, preparing for,
and responding to targeted violence and domestic terrorism”;
and (3) “issue a final report to the House containing such
findings, conclusions, and recommendations for corrective
measures * * * as it may deem necessary.” Id. § 4(a). Those
“corrective measures” include “changes in law, policy,
procedures, rules, or regulations” to (1) “prevent future acts of
violence * * * targeted at American democratic institutions”;
(2) “improve the security posture of the United States Capitol
Complex”; and (3) “strengthen the security and resilience” of
the United States’ “democratic institutions[.]” Id. § 4(c).
The resolution expressly incorporates Rule XI of the Rules
of the House of Representatives, which empowers the
Committee “to require, by subpoena or otherwise, the
attendance and testimony of such witnesses and the production
of books, records, correspondence, memoranda, papers, and
documents as it considers necessary,” including from “the
President, and the Vice President, whether current or former,
in a personal or official capacity, as well as the White House,
the Office of the President, the Executive Office of the
President, and any individual currently or formerly employed
in the White House, Office of the President, or Executive
11
Office of the President[.]” Rules of the U.S. House of Reps.
(117th Cong.) XI.2(m)(1)(B) & (m)(3)(D) (2021); see also
H.R. Res. § 5(c).
C
On August 25, 2021, pursuant to the Presidential Records
Act, 44 U.S.C. § 2205(2)(C), the January 6th Committee
requested that the United States Archivist produce from the
National Archives documents, communications, videos,
photographs, and other media generated within the White
House on January 6, 2021 that relate to the rally on the Ellipse,
the march to the Capitol, the violence at the Capitol, and the
activities of President Trump and other high-level Executive
Branch officials that day. Letter from Bennie G. Thompson,
Chairman of the January 6th Committee, to David Ferriero,
Archivist of the United States (Aug. 25, 2021), J.A. 33–44
(“Thompson Ltr.”). The Committee also asked for calendars
and schedules documenting meetings or events attended by
President Trump, White House visitor records, and call logs
and telephone records from January 6th. J.A. 34–36. In
addition, the Committee requested records from specified time
frames in 2020 and 2021 relating to (1) efforts to contest the
results of the 2020 presidential election, (2) the security of the
Capitol, (3) the planning of protests, marches, rallies, or
speeches in D.C. leading up to January 6th, (4) information
former President Trump received regarding the results of the
2020 election and his public messaging about those results, and
(5) the transfer of power from the Trump Administration to the
Biden Administration. J.A. 36–44.
“Given the urgent nature of [the] request,” the Committee
asked the Archivist to “expedite [its] consultation and
processing times pursuant to * * * 36 C.F.R. § 1270.44(g).”
Thompson Ltr., J.A. 33.
12
On August 30, 2021, as provided by regulation, the
Archivist notified former President Trump that he had
identified a first tranche of 136 pages of responsive records that
he intended to disclose to the January 6th Committee. J.A. 125;
36 C.F.R. § 1270.44(c).
President Biden was notified of that same planned
disclosure about a week later. J.A. 125; 36 C.F.R.
§ 1270.44(c). The Archivist later withdrew seven pages from
disclosure as non-responsive. J.A. 125. On October 8, 2021,
the former President advised the Archivist that he was asserting
executive privilege over 46 of those pages. J.A. 110–111, 126.
The documents subject to Mr. Trump’s assertion of privilege
involve “daily presidential diaries, schedules, [visitor logs],
activity logs, [and] call logs, * * * all specifically for or
encompassing January 6, 2021[,]” “drafts of speeches,
remarks, and correspondence concerning the events of January
6, 2021[,]” and “three handwritten notes concerning the events
of January 6 from [former Chief of Staff Mark] Meadows’
files[.]” J.A. 129. Former President Trump also made “a
protective assertion of constitutionally based privilege with
respect to all additional records” to be produced. J.A. 111.
That same day, Counsel to President Biden informed the
Archivist that the President had “determined that an assertion
of executive privilege is not in the best interests of the United
States, and therefore is not justified as to any of the
Documents” in the first tranche. First Remus Ltr., J.A. 107; 36
C.F.R. § 1270.44(d). The letter explained:
[T]he insurrection that took place on January 6, and
the extraordinary events surrounding it, must be
subject to a full accounting to ensure nothing similar
ever happens again. Congress has a compelling need
in service of its legislative functions to understand the
13
circumstances that led to these horrific events. The
available evidence to date establishes a sufficient
factual predicate for the Select Committee’s
investigation: an unprecedented effort to obstruct the
peaceful transfer of power, threatening not only the
safety of Congress and others present at the Capitol,
but also the principles of democracy enshrined in our
history and our Constitution. The Documents shed
light on events within the White House on and about
January 6 and bear on the Select Committee’s need to
understand the facts underlying the most serious
attack on the operations of the Federal Government
since the Civil War.
These are unique and extraordinary circumstances.
Congress is examining an assault on our Constitution
and democratic institutions provoked and fanned by
those sworn to protect them, and the conduct under
investigation extends far beyond typical deliberations
concerning the proper discharge of the President’s
constitutional responsibilities. The constitutional
protections of executive privilege should not be used
to shield, from Congress or the public, information
that reflects a clear and apparent effort to subvert the
Constitution itself.
First Remus Ltr., J.A. 107–108.
President Biden specified that his decision “applie[d]
solely” to the documents in the first tranche. First Remus Ltr.,
J.A. 108. After President Trump asserted privilege over some
of the documents, the President advised that, for the reasons
already given, he would “not uphold the former President’s
assertion of privilege.” Second Remus Ltr., J.A. 113.
14
Citing “the urgency of the Select Committee’s need for the
information,” President Biden instructed the Archivist to
provide the relevant pages to the Committee 30 days after its
notification to former President Trump. Second Remus Ltr.,
J.A. 113; see 36 C.F.R. § 1270.44(f)(3), (g). Accordingly, on
October 13, 2021, the Archivist informed former President
Trump that, “as instructed by President Biden,” he would
disclose to the Committee the privileged pages in the first
tranche on November 12, 2021, “absent any intervening court
order[.]” J.A. 115; see 36 C.F.R. § 1270.44(f)(3). That same
day, the Archivist disclosed to the January 6th Committee the
90 pages from the first tranche for which privilege was not
claimed. J.A. 126.
On September 9, 2021, the Archivist informed former
President Trump that he intended to disclose a second tranche
of 742—later reduced to 739—responsive pages. J.A. 127.
President Biden was notified shortly thereafter. J.A. 127.
Counsel to the President later instructed the Archivist to extend
for one week the review period for the second tranche. J.A.
127.
On September 16 and 23, 2021, the Archivist notified
former President Trump and President Biden, respectively, of
a third tranche of 146 pages. J.A. 127, 130.
Former President Trump subsequently claimed privilege
over 724 pages in the second and third tranches combined. J.A.
127, 165–171. Those documents cover “pages from multiple
binders containing proposed talking points for the Press
Secretary * * * principally relating to allegations of voter
fraud, election security, and other topics concerning the 2020
election[,]” “presidential activity calendars and a related
handwritten note for January 6, 2021, and for January 2021
generally,” the “draft text of a presidential speech for the
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January 6, 2021, Save America March[,]” “a handwritten note
from * * * Meadows’ files listing potential or scheduled
briefings and telephone calls concerning the January 6
certification and other election issues[,]” and “a draft Executive
Order on the topic of election integrity[.]” J.A. 130. They also
include “a memorandum apparently originating outside the
White House regarding a potential lawsuit by the United States
against several states President Biden won[,]” “an email chain
originating from a state official regarding election-related
issues[,]” “talking points on alleged election irregularities in
one Michigan county[,]” “a document containing presidential
findings concerning the security of the 2020 presidential
election and ordering various actions[,]” and “a draft
proclamation honoring the Capitol Police and deceased officers
Brian Sicknick and Howard Liebengood, and related emails[.]”
J.A. 130–131.
Several days later, President Biden advised the Archivist
that he would not assert executive privilege to prevent
disclosure or uphold the former President’s assertion of
privilege for the identified documents in the second and third
tranches. The President again concluded that an assertion of
executive privilege “is not in the best interests of the United
States,” reiterating his reasoning from the first letter. Third
Remus Ltr., J.A. 173. Citing “the urgency of the Select
Committee’s need for the information,” President Biden
instructed the Archivist to provide the contested pages to the
Committee 30 days after its notification of former President
Trump, unless ordered otherwise by a court. Third Remus Ltr.,
J.A. 174; see 36 C.F.R. § 1270.44(f)(3), (g).
The letter to the Archivist also advised that, “[i]n the
course of an accommodation process between Congress and the
Executive Branch,” the Committee had agreed to defer its
16
request as to fifty pages of responsive records. J.A. 128; Third
Remus Ltr., J.A. 174.
On October 27, 2021, the Archivist advised former
President Trump that he would disclose the 724 pages in the
second and third tranches for which a claim of privilege had
been made to the January 6th Committee on November 26,
2021, “absent any intervening court order.” J.A. 176. The
Archivist added that he would not provide the documents that
President Biden and the January 6th Committee had agreed to
set aside. J.A. 176.
The Archivist’s search for presidential records covered by
the Committee’s request is ongoing, and it “anticipates
providing multiple additional notifications * * * on a rolling
basis as it is able to locate responsive records.” J.A. 129.
D
On October 18, 2021, former President Trump brought suit
in the United States District Court for the District of Columbia
to halt the disclosure of documents to the January 6th
Committee. He filed suit “solely in his official capacity as a
former President[,]” Compl. ¶ 20, J.A. 16, asserting claims
under the Presidential Records Act, its regulations, the
Declaratory Judgment Act, Executive Order No. 13,489, and
the Constitution. Compl. ¶ 1, J.A. 7. Former President Trump
argued that the Committee’s request seeks disclosure of records
protected by executive privilege and lacks a valid legislative
purpose. Compl. ¶ 38, 49, 50, J.A. 23–24, 28–29. He sought a
declaratory judgment that the Committee’s request is invalid
and unenforceable, as well an injunction preventing the
Committee “from taking any actions to enforce the request[]”
or “using * * * any information obtained as a result of the
request[]” and barring the Archivist from “producing the
requested information[.]” Compl. ¶ 54, J.A. 30–31.
17
The next day, Mr. Trump filed a motion for a preliminary
injunction “prohibiting Defendants from enforcing or
complying with the Committee’s request.” Pl.’s Mot. for
Prelim. Inj. at 1, D. Ct. Dkt. 5. He argued that he is likely to
prevail on the ground that the Committee’s request “ha[s] no
legitimate legislative purpose” and seeks “information that is
protected by numerous privileges[,]” id. at 2, and that the court
was required to conduct an in camera review of each assertedly
privileged document, Pl.’s Reply at 24, D. Ct. Dkt. 33. He also
contended that “the Republic” and “future Presidential
administrations” would suffer irreparable harm if the records
were released. Mem. in Supp. of Pl.’s Mot. for Prelim. Inj. at
5–6 (“Prelim. Inj. Mem.”), D. Ct. Dkt. 5-1.
The district court denied the motion for a preliminary
injunction, ruling that former President Trump’s “assertion of
privilege is outweighed by President Biden’s decision not to
uphold the privilege,” and declining to “second guess that
decision by undertaking a document-by-document review[.]”
J.A. 197. The court also said that the Committee acted within
its legislative authority because its request involves “multiple
subjects on which legislation ‘could be had[.]’” J.A. 204
(quoting McGrain v. Daugherty, 273 U.S. 135, 177 (1927)).
The court added that the Committee needs the documents to
understand the “circumstances leading up to January 6[,]” and
to “identify effective reforms,” and that “President Biden’s
decision not to assert the privilege alleviates any remaining
concern that the requests are overly broad.” J.A. 207.
As for irreparable injury, the district court found that the
former President had not identified any personal interest
threatened by production of the records, and that his claim that
disclosure would “gravely undermine the functioning of the
executive branch” was overtaken by President Biden’s
determination that the records could safely be released, as well
18
as the long history of past Presidents waiving privilege when it
was in the interests of the United States to do so. J.A. 212–213.
Lastly, with respect to the balance of harms and public interest,
the court concluded that “discovering and coming to terms with
the causes underlying the January 6 attack is a matter of
unsurpassed public importance[,]” and that “the public interest
lies in permitting—not enjoining—the combined will of the
legislative and executive branches[.]” J.A. 214–215.
The district court subsequently denied Mr. Trump’s request
for an injunction pending appeal. D. Ct. Dkt. 43.
E
Former President Trump filed an appeal and a motion for
both an injunction pending appeal and expedited briefing.
Emergency Mot. for Admin. Inj. (Nov. 11, 2021). That same
day, this court administratively enjoined the Archivist from
releasing the records from the first three tranches over which
former President Trump had claimed executive privilege, and
set a highly expedited schedule for the preliminary injunction
appeal. Per Curiam Order (Nov. 11, 2021).6
6
The only privilege at issue in this appeal is the constitutionally
based presidential communications privilege. Mr. Trump has not
argued that any of the documents for which he has asserted privilege
are protected by common-law privileges, and his counsel told the
district court that there are no private attorney-client documents
among those ready for release. See Hearing Tr. 60:21–61:6, D. Ct.
Dkt. 41 (Nov. 10, 2021), J.A. 278–279.
19
II
The district court exercised jurisdiction under 44 U.S.C.
§ 2204(e) and 28 U.S.C. § 1331. This court has jurisdiction
under 28 U.S.C. § 1292(a)(1).
We review the district court’s denial of a preliminary
injunction for an abuse of discretion, its legal conclusions de
novo, and its factual findings for clear error. Make the Road
New York v. Wolf, 962 F.3d 612, 623 (D.C. Cir. 2020).
III
While the underlying lawsuit challenges the full span of the
January 6th Committee’s request for presidential records, this
preliminary injunction appeal involves the narrower question
of whether former President Trump’s assertion of executive
privilege as to a subset of documents in the Archivist’s first
three tranches requires that those documents be withheld from
the Committee. See Oral Arg. Tr. 12:25–13:6. Those are the
only documents for which President Biden has determined that
withholding based on executive privilege is not in the interests
of the United States, contrary to former President Trump’s
position.
The Archivist’s search for responsive records is ongoing,
and there will almost certainly be documents in future tranches
over which former President Trump will claim privilege. But
at this early stage of the proceedings, those potential claims of
privilege over records in not-yet-extant tranches have not yet
been considered by President Biden, nor been subject to
interbranch negotiation and accommodation. Any potential
future claims are neither ripe for constitutional adjudication nor
capable of supporting this preliminary injunction, since courts
should not reach out to evaluate a former President’s executive
privilege claim based on “future possibilities for constitutional
20
conflict[.]” Nixon v. Administrator of Gen. Servs., 433 U.S.
425, 444–445 (1977); see also Ashwander v. Tennessee Valley
Auth., 297 U.S. 288, 346–348 (1936) (Brandeis, J., concurring)
(“The Court will not anticipate a question of constitutional law
in advance of the necessity of deciding it.”) (internal quotation
marks and citation omitted); cf. Plaut v. Spendthrift Farm, Inc.,
514 U.S. 211, 217 (1995) (courts should take “the narrower
ground for adjudication of the constitutional questions”).7
To understand the legal dispute, some background on the
constitutional interests at stake is in order.
Congress’s Investigative Power
Congress’s power to conduct investigations appears
nowhere in the text of the Constitution. Yet it is settled law
that Congress possesses “the power of inquiry” as “an essential
and appropriate auxiliary to the legislative function.”
McGrain, 273 U.S. at 175. That is because “[w]ithout
information, Congress would be shooting in the dark, unable to
legislate ‘wisely or effectively.’” Trump v. Mazars USA, LLP,
140 S. Ct. 2019, 2031 (2020) (quoting McGrain, 273 U.S. at
174). Congress’s power to obtain information is “broad” and
7
The Archivist provided a fourth tranche of roughly 551 pages
of responsive records to former President Trump and President Biden
in mid-October. See J.A. 128. As of now, former President Trump
and President Biden have reviewed only a small set of pages from
that tranche. See Records Related to the Request for Presidential
Records by the House Select Committee to Investigate the January
6th Attack on the United States Capitol, NATIONAL ARCHIVES (last
updated Nov. 19, 2021), https://www.archives.gov/foia/january-6-
committee (last accessed Dec. 7, 2021). Former President Trump
asserted executive privilege over six pages, and President Biden has
declined to support that assertion. Id. Former President Trump has
not raised any arguments about those six pages in this appeal.
21
“indispensable[,]” Watkins v. United States, 354 U.S. 178, 187,
215 (1957), and “encompasses inquiries into the administration
of existing laws, studies of proposed laws, and ‘surveys of
defects in our social, economic or political system for the
purpose of enabling the Congress to remedy them,’” Mazars,
140 S. Ct. at 2031 (quoting Watkins, 354 U.S. at 187).
Congress’s power to investigate has limits, however.
Because it is “justified solely as an adjunct to the legislative
process[,]” Watkins, 354 U.S. at 197, “a congressional
subpoena is valid only if it is ‘related to, and in furtherance of,
a legitimate task of Congress[,]’” Mazars, 140 S. Ct. at 2031
(quoting Watkins, 354 U.S. at 187). That generally means it
must “concern[] a subject on which ‘legislation could be had.’”
Eastland v. United States Servicemen’s Fund, 421 U.S. 491,
506 (1975) (quoting McGrain, 273 U.S. at 177).
Relatedly, “Congress may not issue a subpoena for the
purpose of ‘law enforcement,’ because ‘those powers are
assigned under our Constitution to the Executive and the
Judiciary.’” Mazars, 140 S. Ct. at 2032 (quoting Quinn v.
United States, 349 U.S. 155, 161 (1955)). Likewise, “there is
no congressional power to expose for the sake of exposure.”
Watkins, 345 U.S. at 200.
Finally, “recipients of legislative subpoenas * * * have
long been understood [by the courts] to retain common law and
constitutional privileges with respect to certain materials, such
as * * * governmental communications protected by executive
privilege.” Mazars, 140 S. Ct. at 2032.
Because “Congress’s responsibilities extend to ‘every
affair of government[,]’” its “inquiries might involve the
President in appropriate cases[.]” Mazars, 140 S. Ct. at 2033
(quoting United States v. Rumely, 345 U.S. 41, 43 (1953)).
22
“Historically, disputes over congressional demands for
presidential documents” have not involved the courts but,
instead, “have been hashed out in the hurly-burly, the give-and-
take of the political process between the legislative and the
executive.” Mazars, 140 S. Ct. at 2029 (internal quotation
marks and citation omitted).
But when disputes between the President and Congress
over records requests have made their way to court, courts have
employed carefully tailored balancing tests that weigh the
competing constitutional interests. See Mazars, 140 S. Ct. at
2035–2036 (asking whether a subpoena for a President’s
personal records is “related to, and in furtherance of, a
legitimate task of Congress” in that (1) the legislative purpose
warrants a request for a President’s records in particular, (2) the
subpoena is not overbroad, (3) Congress has adequately
identified a valid legislative purpose, and (4) the subpoena
would not unduly burden the President) (quoting Watkins, 345
U.S. at 187); Senate Select Comm. on Presidential Campaign
Activities v. Nixon, 498 F.2d 725, 731 (D.C. Cir. 1974)
(weighing a President’s assertion of privilege against whether
“subpoenaed evidence is demonstrably critical to the
responsible fulfillment of the Committee’s functions”); cf.
United States v. Nixon, 418 U.S. 683, 713 (1974) (“The
generalized assertion of privilege must yield to the
demonstrated, specific need for evidence in a pending criminal
trial.”). None of those tests, though, have been applied to
resolve a privilege dispute between a former President and the
joint judgment of the incumbent President and the Legislative
Branch.
Executive Privilege
The canonical form of executive privilege, and the one at
issue here, is the presidential communications privilege. That
23
privilege allows a President to protect from disclosure
“documents or other materials that reflect presidential
decisionmaking and deliberations and that the President
believes should remain confidential.” In re Sealed Case, 121
F.3d 729, 744 (D.C. Cir. 1997); see United States v. Nixon, 418
U.S. at 705. The privilege applies not only to materials viewed
by the President directly, but also to records “solicited and
received by the President or [the President’s] immediate White
House advisers who have broad and significant responsibility”
for advising the President. Judicial Watch, Inc. v. Department
of Justice, 365 F.3d 1108, 1114 (D.C. Cir. 2004) (internal
quotation marks and citation omitted).
This presidential privilege, like Congress’s investigative
power, is not mentioned in the text of the Constitution.
Nonetheless, “presidential claims to such a power go as far
back as the early days of the Republic[,]” 26A CHARLES ALAN
WRIGHT ET AL., FEDERAL PRACTICE & PROCEDURE EVIDENCE
§ 5673 (1st ed. 2021), and the Supreme Court has concluded
that “the silence of the Constitution on this score is not
dispositive,” United States v. Nixon, 418 U.S. at 705 n.16.
Instead, an implied executive privilege “derives from the
supremacy of the Executive Branch within its assigned area of
constitutional responsibilities,” Nixon v. GSA, 433 U.S. at 447,
is “fundamental to the operation of Government[,] and [is]
inextricably rooted in the separation of powers under the
Constitution,” United States v. Nixon, 418 U.S. at 708.
The executive privilege is just that—a privilege held by
the Executive Branch, “not for the benefit of the President as
an individual, but for the benefit of the Republic.” Nixon v.
GSA, 433 U.S. at 449 (citation omitted). Because “[a]
President and those who assist him must be free to explore
alternatives in the process of shaping polices and making
decisions and to do so in a way many would be unwilling to
24
express except privately,” United States v. Nixon, 418 U.S. at
708, the privilege “safeguards the public interest in candid,
confidential deliberations within the Executive Branch,”
Mazars, 140 S. Ct. at 2032.
But the executive privilege is a qualified one; it is not
“absolute[.]” United States v. Nixon, 418 U.S. at 707.
Executive privilege may be overcome by “a strong showing of
need by another institution of government[.]” Senate Select
Comm., 498 F.2d at 730; see also United States v. Nixon, 418
U.S. at 707. And the privilege may give way in the face of
other “strong constitutional value[s,]” Dellums v. Powell, 561
F.2d 242, 247 (D.C. Cir. 1977), such as “the fundamental
demands of due process of law” in criminal trials, United States
v. Nixon, 418 U.S. at 713; see also Protect Democracy Project,
Inc. v. National Security Agency, 10 F.4th 879, 886 (D.C. Cir.
2021).
Despite its unquestioned significance, executive privilege
also can be waived. The historical record documents numerous
instances in which Presidents have waived executive privilege
in times of pressing national need. See page 41, infra
(providing examples).
The privilege, like all other Article II powers, resides with
the sitting President. Nevertheless, in Nixon v. GSA, the
Supreme Court held that former Presidents retain for some
period of time a right to assert executive privilege over
documents generated during their administrations. 433 U.S. at
449, 451. The Court held that this residual right protects only
“the confidentiality required for the President’s conduct of
office[,]” rather than any personal interest in nondisclosure. Id.
at 448.
In addition, when it comes to evaluating the impact on the
Executive Branch of disclosing presidential materials, the
25
Supreme Court was explicit that the incumbent President is “in
the best position to assess the present and future needs of the
Executive Branch[.]” Nixon v. GSA, 433 U.S. at 449.8
The Management of Presidential Records:
Statutory Provisions
Starting with George Washington, “Presidents exercised
complete dominion and control over their presidential papers”
after leaving office. Nixon v. United States, 978 F.2d 1269,
1277 (D.C. Cir. 1992). This tradition “made for a highly
idiosyncratic if not entirely unhappy record of preserving the
papers of United States Presidents.” NATIONAL STUDY
COMM’N ON RECORDS & DOCUMENTS OF FED. OFFICIALS,
MEMORANDUM OF FINDINGS ON EXISTING CUSTOM OR LAW,
FACT AND OPINION 3 (undated), reprinted in Presidential
Records Act of 1978: Hearings on H.R. 10998 and Related
Bills Before a Subcomm. of the H. Comm. on Gov’t Operations,
95th Cong. 467, 469 (1978).
Following the Watergate scandal and the resignation of
President Richard Nixon, Congress passed the Presidential
Recordings and Materials Preservation Act (“Preservation
Act”), which focused exclusively on former President Nixon’s
tape recordings, papers, and other historical materials from his
term in office. See Pub. L. No. 93-526, § 101, 88 Stat. 1695(1974). The Preservation Act required the General Services
Administrator to “receive, retain, or make reasonable efforts to
obtain, complete possession and control of” those historical
materials, and make them publicly “available, subject to any
8
Like the Supreme Court, we treat the terms “presidential
privilege,” “presidential communications privilege,” and “executive
privilege” as interchangeable for purposes of this case. See Nixon v.
GSA, 433 U.S. at 446 n.9; see also Dellums, 561 F.2d at 245 n.8.
26
rights, defenses, or privileges which the Federal Government
or any person may invoke, for use in any judicial proceeding or
otherwise subject to court subpena [sic] or other legal process.”
Id. §§ 101, 102, 88 Stat. at 1695–1696; see 44 U.S.C. § 2111note.9
Four years later, Congress enacted the Presidential Records
Act of 1978. That Act provides that, as of January 21, 1981,
the United States “shall reserve and retain complete ownership,
possession, and control of Presidential records.” 44 U.S.C.
§ 2202 & note. The Act defines “Presidential records” as:
[D]ocumentary materials, or any reasonably
segregable portion thereof, created or received
by the President, the President’s immediate
staff, or a unit or individual of the Executive
Office of the President whose function is to
advise or assist the President, in the course of
conducting activities which relate to or have an
effect upon the carrying out of the
constitutional, statutory, or other official or
ceremonial duties of the President.
Id. § 2201(2). “[P]ersonal records” of a President, defined as
documentary materials “of a purely private or nonpublic
character which do not relate to or have an effect upon the
carrying out of the constitutional, statutory, or other official or
9
The Archivist of the National Archives and Records
Administration replaced the Administrator of the General Services
Administration in 1984. See Public Citizen v. Burke, 843 F.2d 1473,
1475 (D.C. Cir. 1988); National Archives and Records
Administration Act of 1984, Pub. L. No. 98-497, § 103(b)(2), 98
Stat. 2280, 2283.
27
ceremonial duties of the President[,]” are excluded from
regulation. Id. § 2201(3).
Under the Presidential Records Act, once a President’s time
in office concludes, the “Archivist of the United States shall
assume responsibility for the custody, control, and preservation
of, and access to, the Presidential records of that President.” 44
U.S.C. § 2203(g)(1). The Archivist has “an affirmative duty to
make such records available to the public as rapidly and
completely as possible consistent with the provisions” of the
Presidential Records Act. Id. § 2203(g)(1).
The Act provides former Presidents with some protection
against public disclosure. Specifically, the Act allows a
President, when leaving office, to restrict for up to twelve years
public access to records that (1) are classified and involve
national defense or foreign policy, (2) relate to appointments to
public office, (3) are exempt from disclosure under certain
federal statutes, (4) contain trade secrets or other privileged or
confidential commercial or financial information obtained
from a person, (5) constitute “confidential communications
requesting or submitting advice, between the President and the
President’s advisers, or between such advisers[,]” or (6)
personnel, medical, and similar files implicating personal
privacy. 44 U.S.C. § 2204(a) & (a)(1)–(a)(6); see also 36
C.F.R. § 1270.40(a).
The Act tasks the Archivist with properly designating
“[a]ny Presidential record or reasonably segregable portion
thereof containing information within a category restricted by
the President[,]” and preventing public access to those
documents until the appropriate time. 44 U.S.C. § 2204(b)(1);
see also 36 C.F.R. § 1270.40(c). The Presidential Records Act
precludes judicial review of the Archivist’s designations
“[d]uring the period of restricted access[,]” except for “any
28
action initiated by the former President asserting that a
determination made by the Archivist violates the former
President’s rights or privileges.” 44 U.S.C. § 2204(b)(3), (e).
Relevant to this case, under the Presidential Records Act,
those restrictions on public access do not apply, and the
Archivist “shall” provide access to presidential records, when
the documents are:
• subpoenaed or subjected to other judicial process by a
court as part of a civil or criminal proceeding;
• requested by an incumbent President “if such records
contain information that is needed for the conduct of
current business of the incumbent President’s office
and that is not otherwise available”; or
• requested by either House of Congress or a committee
acting within its jurisdiction and the information is
“needed for the conduct of its business and [is] not
otherwise available[.]”
44 U.S.C. § 2205(2)(A)–(C). Disclosure under this section is
“subject to any rights, defenses, or privileges which the United
States or any agency or person may invoke[.]” Id. at § 2205(2).
The Management of Presidential Records:
Regulatory Provisions
Under the Preservation Act, the National Archives and
Records Administration promulgated regulations providing
that the Archivist would decide which assertions of “legal or
constitutional right[s] or privilege[s]” would “prevent or limit
public access” to the presidential records of former President
Nixon. See 36 C.F.R. §§ 1275.26(g), 1275.44(a) (1987).
29
The Department of Justice’s Office of Legal Counsel
interpreted those regulations as requiring that “the Archivist
must and will honor any claim of executive privilege asserted
by an incumbent President, * * * [and] that the Archivist must
and will treat any claim by a former President” in accordance
with “the supervision and control of the incumbent President.”
Memorandum from Charles J. Cooper, Assistant Attorney
General, Office of Legal Counsel, Department of Justice, to
Robert P. Bedell, Deputy Administrator, Office of Information
and Regulatory Affairs, Office of Management. and Budget
23–24, 26 (Feb. 18, 1986), reprinted in Review of Nixon
Presidential Materials Access Regulations: Hearing Before a
Subcomm. of the H. Comm. on Gov’t Operations, 99th Cong.
263–292 (1986) (“1986 OLC Memorandum”); see Public
Citizen v. Burke, 843 F.2d 1473, 1476–1477 (D.C. Cir. 1988).
In the view of the Office of Legal Counsel, the incumbent
President “should respect a former President’s claim of
executive privilege without judging the validity of the claim[,]”
leaving the “judgment regarding such a claim * * * to the
judiciary in litigation between the former President and parties
seeking disclosure.” 1986 OLC Memorandum at 26. The OLC
memorandum acknowledged, though, that “if the incumbent
President believes that the discharge of his [or her]
constitutional duties * * * demands the disclosure of
documents claimed by the former President to be privileged, it
may be necessary for [the President] to oppose a former
President’s claim” even if “it is generally not appropriate for
an incumbent President to review and adjudicate the merits of
a predecessor’s claim of executive privilege[.]” Id.; see also
Burke, 843 F.2d at 1478–1479. In that event, the Archivist
would be obliged to follow the direction of the incumbent
President. 1986 OLC Memorandum at 24, 26; see Burke, 843
F.2d at 1478–1479.
30
In Public Citizen v. Burke, this court held that the Office of
Legal Counsel’s interpretation was neither constitutionally
required nor compatible with the Preservation Act. 843 F.2d at1479–1480. We ruled that “the incumbent President is not
constitutionally obliged to honor former President Nixon’s
invocation of executive privilege with respect to the Nixon
papers[.]” Id. at 1479. Rather, it was the incumbent President’s
duty under the Preservation Act to “consider the host of
difficult questions that arise in this area,” even if that meant
being put in the “awkward position” of taking “a position on
claims of executive privilege put forward by former President
Nixon.” Burke, 843 F.2d at 1479.
Meanwhile, the Presidential Records Act had tasked the
Archivist with promulgating regulations for the provision of
notice to a former President when materials for which access
had been restricted are sought by a court, the President, or
Congress under 44 U.S.C. § 2205(2), and “when the disclosure
of particular documents may adversely affect any rights and
privileges which the former President may have[.]” 44 U.S.C.
§ 2206(2)–(3).
The Archivist promulgated those regulations in 1988. See
36 C.F.R. Pt. 1270 (1989). The regulations required the
Archivist to notify a former President or the former President’s
designated representative “before any Presidential records of
his [or her] Administration [were] disclosed” either to the
public or under Section 2205, including releases to Congress
and its committees. 36 C.F.R. § 1270.46(a) (1989). If then “a
former President raise[d] rights or privileges which he [or she]
believe[d] should preclude the disclosure of a Presidential
record,” but the Archivist decided that the record still should
be disclosed, “in whole or in part,” the Archivist was required
31
to give notice to the former President or the President’s
representative. Id. § 1270.46(c).
Shortly after those regulations were promulgated, President
Ronald Reagan issued an Executive Order that expanded on the
process for responding to a former President’s invocation of
privilege. See Exec. Order No. 12,667, 54 Fed. Reg. 3403 (Jan.
18, 1989); see also 44 U.S.C. § 2204 note. Under that
Executive Order, when the incumbent President invoked
executive privilege, the Archivist was prohibited from
disclosing the records “unless directed to do so by an
incumbent President or by a final court order.” Exec. Order
No. 12,667 § 3(d). If a former President invoked executive
privilege, but the incumbent did not, the Archivist was charged
with determining “whether to honor the former President’s
claim of privilege[.]” Id. § 4(a). In making that determination,
though, the Archivist was bound to “abide by any instructions
given him [or her] by the incumbent President or [the
President’s] designee unless otherwise directed by a final court
order.” Id. § 4(b).
President Reagan’s Executive Order governed the handling
of privilege claims by former Presidents for more than a
decade. See 44 U.S.C. § 2204 note.
In 2001, President George W. Bush issued an Executive
Order that took a different tack. Exec. Order No. 13,233, 66
Fed. Reg. 56,025 (Nov. 1, 2001); see 44 U.S.C. § 2204 note.
For disclosures to Congress or one of its committees under
44 U.S.C. § 2205(2)(C), the new Executive Order provided that
the “Archivist shall not permit access to the records unless and
until * * * the former President and the incumbent President
agree to authorize access” or a “final and nonappealable court
order” requires it. Exec. Order No. 13,233 § 6 (emphasis
32
added). While that new procedure reflected President Bush’s
view of proper policy, the Administration was explicit that such
deference to a former President was not constitutionally
compelled and would not affect a court’s disposition of a
lawsuit by the former President. See Hearings on Executive
Order 13,233 and the Presidential Records Act Before the
Subcomm. of the H. Comm. on Gov’t Reform, 107th Cong. 20,
108 (2001–2002) (“Executive Order 13,233 Hearings”)
(statement of M. Edward Whelan III, Acting Assistant
Attorney General, Office of Legal Counsel, Department of
Justice); id. at 21 (“Let me emphasize, moreover, that the
Executive order is wholly procedural in nature.” It does not “in
any respect purport to redefine the substantive scope of any
constitutional privilege.”).10 In addition, the incumbent
President need not “support that privilege claim” in the “forum
in which the privilege claim is challenged.” Exec. Order No.
13,233 § 4.11
President Barack Obama returned to the procedures
established by President Reagan. Exec. Order No. 13,489, 74
Fed. Reg. 4669 (Jan. 21, 2009); see 44 U.S.C. § 2204 note.
In 2014, Congress largely codified the approach of the
Reagan Executive Order. The Presidential and Federal
Records Act Amendments of 2014, Pub. L. No. 113-187, 128
Stat. 2003, provided detailed procedures for protecting and
10
Mr. Trump has not argued that the Constitution requires that
the views of a former President unilaterally control. Nor could he.
See Nixon v. GSA, 433 U.S. at 449; Burke, 843 F.2d at 1479; Nixon
v. United States, 978 F.2d at 1272.
11
The Executive Order provided that the incumbent President
“will support” the former President’s privilege claim only when he
concurs in the assertion of privilege and access is sought by the
public under 44 U.S.C. § 2204(c)(1). Exec. Order No. 13,233 § 4.
33
asserting claims of “constitutionally based privilege” against
disclosure “to the public” of presidential records. Id. § 2; 44
U.S.C. § 2208 (procedures for public disclosure). The 2014
Amendments provide that, if “the incumbent President
determines not to uphold the claim of privilege asserted by the
former President,” then “the Archivist shall release the
Presidential record subject to the claim” at the end of a 90-day
period unless otherwise directed by a court order. 44 U.S.C.
§ 2208(c)(2)(C) (emphasis added).
The 2014 amendments did not expressly extend those
notification procedures to disclosures to Congress, the
incumbent President, or the judiciary under Section 2205. But
under the Trump Administration, the National Archives
promulgated regulations “ensur[ing] that the former and
incumbent Presidents are given notice and an opportunity to
consider whether to assert a constitutionally based privilege”
when disclosure is sought under Section 2205. Presidential
Records, 82 Fed. Reg. 26,588, 26,589 (June 8, 2017). Under
those regulations, the Archivist must “promptly notif[y] the
President * * * during whose term of office the record was
created, and the incumbent President” of a document request
by, inter alia, “either House of Congress, or * * * a
congressional committee or subcommittee” under 44 U.S.C.
§ 2205(2)(c). 36 C.F.R. § 1270.44(a)(3), (c). Once notified,
“either President may assert a claim of constitutionally based
privilege against disclosing the record or a reasonably
segregable portion of it within 30 calendar days after the date
of the Archivist’s notice.” Id. § 1270.44(d).
If the incumbent President maintains a privilege claim, the
Archivist may not disclose the document absent court order.
36 C.F.R. § 1270.44(e)(2). On the other hand, if the former
President asserts privilege, the Archivist must consult with the
incumbent President “to determine whether the incumbent
34
President will uphold the claim.” 36 C.F.R. § 1270.44(f)(1). If
the incumbent President upholds and maintains the claim, then
the Archivist may not disclose the presidential record without
a court order. Id. § 1270.44(f)(2). If the incumbent President
does not uphold or withdraws the privilege claim or fails to
decide within 30 days, the Archivist must “disclose[] the
Presidential record” after a 60-day time period, unless a court
orders otherwise. Id. § 1270.44(f)(3).
So for 24 years of the Presidential Records Act’s operation
and across five different presidencies, Presidents, including
former President Trump, have agreed that the disclosure
decision of an incumbent President controls within the
Executive Branch over the contrary claim of a former
President. And all Presidents have agreed that the Constitution
does not obligate an incumbent President or court to uphold the
views of a former President. See Burke, 843 F.2d at 1479.
IV
With that background in mind, we turn to the merits of
former President Trump’s appeal. Our starting point is the
Supreme Court’s admonition that a preliminary injunction is
“an extraordinary remedy that may only be awarded upon a
clear showing that the plaintiff is entitled to such relief.”
Winter v. Natural Res. Def. Council, Inc., 555 U.S. 7, 22
(2008). The movant must: (1) establish a likelihood of
“succe[ss] on the merits”; (2) show “irreparable harm in the
absence of preliminary relief”; (3) demonstrate that the equities
favor issuing an injunction; and (4) persuade the court that “an
injunction is in the public interest.” Id. at 20. The likelihood
of success and irreparability of harm “are the most critical”
factors. Nken v. Holder, 556 U.S. 418, 434 (2009). The
balance of harms and the public interest factors merge when
the government is the opposing party. Id. at 435.
35
On this record, former President Trump has failed to satisfy
any of those criteria for preliminary injunctive relief.
A
There is no question that the former President can file suit
to press his claim of executive privilege. The Supreme Court
in Nixon v. GSA specifically “reject[ed] the argument that only
an incumbent President may assert such claims” and ruled that
“a former President[] may also be heard to assert them” in
court. 433 U.S. at 439. The Court explained that executive
privilege “is necessary to provide the confidentiality required
for the President’s conduct of office” because, “[u]nless he can
give his advisers some assurance of confidentiality, a President
could not expect to receive the full and frank submissions of
facts and opinions upon which effective discharge of his duties
depends.” Id. at 448–449. “[T]he privilege survives the
individual President’s tenure[,]” the Court said, because the
“privilege is not for the benefit of the President as an
individual, but for the benefit of the Republic.” Id. at 449(internal quotation marks and citation omitted). So the
privilege that Mr. Trump asserts in his capacity as a former
President is of constitutional stature.
The Presidential Records Act reflects that understanding
by providing that a former President may initiate an action
“asserting that a determination made by the Archivist violates
the former President’s rights or privileges.” 44 U.S.C.
§ 2204(e). And “[n]othing in [the] Act shall be construed to
* * * limit * * * any constitutionally-based privilege which
may be available to a[] * * * former President.” Id. at
§ 2204(c)(2).
36
B
While former President Trump can press an executive
privilege claim, the privilege is a qualified one, as he agrees.
See Nixon v. GSA, 433 U.S. at 446; United States v. Nixon, 418
U.S. at 707; Appellant Opening Br. 35. Even a claim of
executive privilege by a sitting President can be overcome by
a sufficient showing of need. See United States v. Nixon, 418
U.S. at 713; In re Sealed Case, 121 F.3d at 292. The right of a
former President certainly enjoys no greater weight than that of
the incumbent.
In cases concerning a claim of executive privilege, the
bottom-line question has been whether a sufficient showing of
need for disclosure has been made so that the claim of
presidential privilege “must yield[.]” Nixon v. GSA, 433 U.S.
at 454; see United States v. Nixon, 418 U.S. at 706, 713.12
In this case, President Biden, as the head of the Executive
Branch, has specifically found that Congress has demonstrated
a compelling need for these very documents and that disclosure
is in the best interests of the Nation. Congress, which has
engaged in a course of negotiation and accommodation with
the President over these documents, agrees. So the tests that
courts have historically used to police document disputes
between the Political Branches seem a poor fit when the
Executive and Congress together have already determined that
the “demonstrated and specific” need for disclosure that former
President Trump would require, Appellant Opening Br. 35, has
been met. A court would be hard-pressed under these
circumstances to tell the President that he has miscalculated the
12
Mr. Trump’s counsel agrees that this standard governs. See
Oral Arg. Tr. 34:23–25; Appellant Opening Br. 35 (“[T]he executive
privilege * * * can only be invaded pursuant to a demonstrated and
specific showing of need[.]”).
37
interests of the United States, and to start an interbranch
conflict that the President and Congress have averted.
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 interests of the United States to
invoke privilege. Under any of 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.
1
On this record, a rare and formidable alignment of factors
supports the disclosure of the documents at issue. President
Biden has made the considered determination that an assertion
of executive privilege is not in the best interests of the United
States given the January 6th Committee’s compelling need to
investigate and remediate an unprecedented and violent attack
on Congress itself. Congress has established that the
information sought is vital to its legislative interests and the
protection of the Capitol and its grounds. And the Political
Branches are engaged in an ongoing process of negotiation and
accommodation over the document requests.
a
President Biden’s careful and cabined assessment that the
best interests of the Executive Branch and the Nation warrant
disclosing the documents, by itself, carries immense weight in
overcoming the former President’s assertion of privilege.
To start, as the incumbent, President Biden is the principal
holder and keeper of executive privilege, and he speaks
authoritatively for the interests of the Executive Branch. Under
our Constitution, we have one President at a time. Article II is
38
explicit that “[t]he executive Power shall be vested in a
President of the United States of America.” U.S. CONST. Art.
II, § 1, cl. 1 (emphasis added); see Seila Law LLC v. Consumer
Fin. Prot. Bureau, 140 S. Ct. 2183, 2191 (2020) (“[T]he
‘executive Power’—all of it—is ‘vested in a President[.]’”)
(emphasis added) (quoting U.S. CONST., Art. II, § 1, cl. 1). As
between a former and an incumbent President, “only the
incumbent is charged with performance of the executive duty
under the Constitution.” Nixon v. GSA, 433 U.S. at 448.
To be sure, former President Trump has important insight
on the value of preserving the confidentiality of records created
during his administration. But it is only President Biden who
can make a fully informed and circumspect assessment of all
the competing needs and interests of the Executive Branch.
These might include (to name just a few) the current and
prospective threats to democratic institutions and the electoral
process, intelligence on domestic extremists, the full panoply
of competing privilege claims and disputes between the
Executive Branch and Congress, the sensitive status of
interbranch relations at multiple levels, and the costs and
benefits of a privilege battle or disclosure at the time the matter
arises.
The Supreme Court underscored this point when it held, in
rejecting a claim of executive privilege by another former
President, that “it must be presumed that the incumbent
President is vitally concerned with and in the best position to
assess the present and future needs of the Executive Branch,
and to support invocation of the privilege accordingly.” Nixon
v. GSA, 433 U.S. at 449; see also Dellums, 561 F.2d at 247(“[I]t is the new President who has the information and
attendant duty of executing the laws in light of current facts and
circumstances, and who has the primary * * * responsibility of
deciding when presidential privilege must be claimed[.]”).
39
So President Biden’s explicit and informed judgment
“detracts from the weight of” former President Trump’s view
that disclosure in these circumstances “impermissibly intrudes
into the executive function and the needs of the Executive
Branch.” Nixon v. GSA, 433 U.S. at 449.
In addition, President Biden has identified weighty
reasons for declining to assert privilege here. He grounded his
decision in the “unique and extraordinary circumstances” of the
January 6th attack—“an unprecedented effort to obstruct the
peaceful transfer of power” that “threaten[ed] not only the
safety of Congress and others present at the Capitol, but also
the principles of democracy enshrined in our history and our
Constitution.” First Remus Ltr., J.A. 107–108. President
Biden further emphasized Congress’s “compelling need in
service of its legislative functions to understand the
circumstances that led to these horrific events.” First Remus
Ltr., J.A. 107. President Biden also tied his decision to “[t]he
available evidence to date[,]” which he concluded “establishes
a sufficient factual predicate for the Select Committee’s
investigation” of these presidential papers. First Remus Ltr.,
J.A. 107. Finally, President Biden acknowledged the
“constitutional protections of executive privilege[,]” but
explained that “the conduct under investigation extends far
beyond typical deliberations concerning the proper discharge
of the President’s constitutional responsibilities[,]” and the
privilege “should not be used to shield * * * information that
reflects a clear and apparent effort to subvert the Constitution.”
First Remus Ltr., J.A. 108; see also Second Remus Ltr., J.A.
113; Third Remus Ltr., J.A. 173–174.
The record also shows that, for the documents over which
the former President asserted privilege, President Biden and his
staff took at least a month to review each tranche. See J.A.
125–128. During that time, former President Trump’s views
40
were obtained. J.A. 13. In addition, the sitting President and
the Committee reached compromises under which the
Committee deferred its request for some documents. J.A. 128,
176.
On this record, we cannot credit the former President’s
argument that President Biden’s calibrated judgment is merely
“the whim[] of [a] sitting President who may be unable [to] see
past his own political considerations.” Appellant Opening Br.
17. Indeed, President Biden’s care to limit his decision to the
particular documents that “shed light on events within the
White House on and about January 6[,]” First Remus Ltr., J.A.
107; see also Second Remus Ltr., J.A. 113; Third Remus Ltr.,
J.A. 173–174, bears no resemblance to the “broad and limitless
waiver” of executive privilege former President Trump decries,
Appellant Opening Br. 35.
That is not to say, of course, that an incumbent President
must provide a written explanation for a former President’s
claim of privilege to fail. In Nixon v. GSA, the incumbent
President had not provided such an explanation, but instead had
simply chosen to defend the facial constitutionality of the
Preservation Act in court. See 443 U.S. at 441. And in
Dellums, the incumbent was silent as to privilege. 561 F.2d at
247.
Still, when the head of the Executive Branch lays out the
type of thoroughgoing analysis provided by President Biden,
the scales tilt even more firmly against the contrary views of
the former President. For Article III courts are generally ill-
equipped to superintend or second guess the expert judgment
of the sitting President about the current needs of the Executive
Branch and the best interests of the United States on matters of
such gravity and so squarely within the President’s Article II
discretion.
41
President Biden’s explanation also makes clear that his
decision respects and preserves the strong constitutional
reasons for executive privilege at the heart of the former
President’s objection. Here, the letter shows that President
Biden’s judgment is of a piece with decisions made by other
Presidents to waive privilege in times of pressing national need.
For example, President Nixon decided that executive privilege
would “not be invoked as to any testimony concerning * * *
discussions of possible criminal conduct” as part of the Senate
Select Committee’s investigation of Watergate. Statements
About the Watergate Investigations, 1973 PUB. PAPERS 547,
554 (May 22, 1973). During congressional investigations into
the Iran-Contra affair, President Reagan authorized testimony
and the production of documents, including excerpts from his
personal diaries. See REPORT OF THE CONGRESSIONAL
COMMITTEES INVESTIGATING THE IRAN-CONTRA AFFAIR, H.R.
REP. No. 100-433, S. REP. No. 100-216, at xvi (1987). In the
aftermath of the September 11th attacks, President Bush and
Vice President Richard Cheney sat for a more than three-hour
interview with the commission investigating the attacks.13 And
President Trump himself chose not to invoke privilege to
prevent former FBI Director James Comey from testifying
before Congress, despite (borne out) expectations that the
testimony would include Comey’s recollections of confidential
conversations with President Trump.14
13
Philip Shenon & David E. Sanger, Bush & Cheney Tell 9/11
Panel of ’01 Warnings, N.Y. TIMES (April 30, 2004),
https://perma.cc/QD2N-MAVX; see NATIONAL COMM’N ON
TERRORIST ATTACKS UPON THE UNITED STATES, THE 9/11
COMMISSION REPORT, at xv (2004).
14
Peter Baker, Trump Will Not Block Comey From Testifying,
White House Says, N.Y. TIMES (June 5, 2017),
https://perma.cc./B93T-8STK.
42
In short, President Biden’s considered judgment that the
interests of the United States and the interests of the Executive
Branch favor disclosure in this instance substantially “detracts
from the weight of” former President Trump’s contrary
privilege contention. Nixon v. GSA, 433 U.S. at 449.
b
Also countering former President Trump’s claim is
Congress’s uniquely weighty interest in investigating the
causes and circumstances of the January 6th attack so that it
can adopt measures to better protect the Capitol Complex,
prevent similar harm in the future, and ensure the peaceful
transfer of power. The Presidential Records Act requires that
the January 6th Committee show that presidential records are
“needed for the conduct of its business[.]” 44 U.S.C.
§ 2205(2)(C). The Committee has comfortably met that
standard here.
The very essence of the Article I power is legislating, and
so there would seem to be few, if any, more imperative interests
squarely within Congress’s wheelhouse than ensuring the safe
and uninterrupted conduct of its constitutionally assigned
business. Here, the House of Representatives is investigating
the single most deadly attack on the Capitol by domestic forces
in the history of the United States. 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. They were forced to flee, preventing the
legislators from completing their constitutional duties until the
next day.
The January 6th Committee has also demonstrated a sound
factual predicate for requesting these presidential documents
specifically. There is a direct linkage between the former
43
President and the events of the day. Then-President Trump
called for his supporters to gather in Washington, D.C. for a
“wild” response to what he had been alleging for months was a
stolen election. Donald Trump (@realDonaldTrump),
TWITTER (Dec. 19, 2020, 1:42 AM). On January 6th, President
Trump directed his followers to go to the Capitol and “fight”
for their Country with the aim of preventing Congress’s
certification of the electoral vote. January 6th Rally Speech at
3:47:20 (“[Y]ou’ll never take back our country with weakness.
* * * We have come to demand that Congress do the right thing
and only count” certain electors.), 4:41:28.
The White House is also the hub for intelligence about
threats of violent action against the government, and the
Executive Branch is in charge of federal law enforcement and
mobilizing the National Guard to defend the Capitol. See U.S.
CONST. Art. II, § 2, cl. 1; D.C. Code § 49-409. So information
from within the White House is critical to understanding what
intelligence failures led the government to be underprepared
for such a violent attack, and what can be done to expedite the
mobilization of law enforcement forces in a crisis on Capitol
Hill going forward. H.R. Res. 503 § 4(a)(2)(A)–(B), (c).
Given all of that, the Committee has sound reasons for seeking
presidential documents in particular as part of its investigation
into the causes of the attack on the Capitol.
The Supreme Court’s decision in Nixon v. GSA makes
clear that Congress’s interests go far in outweighing the former
President’s privilege claim. In Nixon v. GSA, the Court found
a “substantial public interest[]” in “Congress’ need to
understand how those political processes [in the Watergate
scandal] had in fact operated in order to g[au]ge the necessity
for remedial legislation” and “to restore public confidence in
our political processes[.]” 433 U.S. at 453. In that way, the
Court explained, Congress’s efforts to preserve and afford
44
access to presidential records “may be thought to aid the
legislative process and thus to be within the scope of Congress’
broad investigative power[.]” Id. These “important”
congressional interests in coming to terms with the Watergate
scandal supported the Court’s conclusion that the former
President’s claims of executive privilege “must yield[.]” Id. at
454.
So too here, the January 6th Committee’s access to the
requested materials is vital to Congress’s own evaluation of
whether the process for transferring power between
administrations is “characterized by deficiencies susceptible of
legislative correction[,]” Nixon v. GSA, 433 U.S. at 499(Powell, J., concurring).
Keep in mind that the “presumptive privilege” for
presidential communications “must be considered in light of
our historic commitment to the rule of law.” United States v.
Nixon, 418 U.S. at 708. In United States v. Nixon, the particular
component of the rule of law that overcame a sitting President’s
assertion of executive privilege was the “right to every
[person]’s evidence” in a criminal proceeding. Id. at 709(quoting Branzburg v. Hayes, 408 U.S. 665, 688 (1972)).
Allowing executive privilege to prevail over that principle
would have “gravely impair[ed] the basic function of the
courts.” Id. at 712.
An equally essential aspect of the rule of law is the
peaceful transition of power, and the constitutional role
prescribed for Congress by the Twelfth Amendment in
verifying the electoral college vote. To allow the privilege of
a no-longer-sitting President to prevail over Congress’s need to
investigate a violent attack on its home and its constitutional
operations would “gravely impair the basic function of the”
legislature. United States v. Nixon, 418 U.S. at 712.
45
c
Weighing still more heavily against former President
Trump’s claim of privilege is the fact that the judgment of the
Political Branches is unified as to these particular documents.
President Biden agrees with Congress that its need for the
documents at issue is “compelling[,]” and that it has a
“sufficient factual predicate” for requesting them. First Remus
Ltr., J.A. 107; see also Third Remus Ltr., J.A. 173. As a result,
blocking disclosure would derail an ongoing process of
accommodation and negotiation between the President and
Congress, and instigate an interbranch dispute.
The Supreme Court has emphasized the importance of
courts deferring to information-sharing agreements wrestled
over and worked out between Congress and the President. See
Mazars, 140 S. Ct. at 2029, 2031. Historically, “disputes over
congressional demands for presidential documents have not
ended up in court[,]” but rather “have been hashed out in the
‘hurly-burly, the give-and-take of the political process between
the legislative and the executive,’” id. at 2029 (citation and
internal quotation marks omitted), generally allowing the
courts to avoid being drawn into the power struggle. That
“hurly-burly” is a flexible, dynamic process that could involve
interlocking and contingent negotiations over multiple
different requests for information, the President’s legislative
priorities, nominations and confirmations, and the many other
complementary and competing interests and responsibilities of
those two Branches.
In that “tradition of negotiation and compromise[,]” the
Executive and Legislative Branches have reached an
accommodation here. Mazars, 140 S. Ct. at 2031. President
Biden and Congress have come to an agreement that the
pressing needs of the January 6th Committee and the interests
46
of the United States warrant a limited disclosure of the
documents for which privilege has been asserted. That
arrangement reflects give-and-take, as the Committee agreed to
defer its request for fifty pages of responsive records from the
second and third tranches. J.A. 170, 176.
Former President Trump states that he too was engaged in
negotiations with the White House. But he abruptly stopped
them when the decision to release documents from the first
tranche was made. Compl. ¶¶ 15–16, J.A. 13–15. And even
though, in the past, committees have sometimes “agreed to
restrictions on the type of access provided” to privileged
documents, such as “read-only access or committee-
confidential restrictions[,]” Laster Decl., J.A. 124, former
President Trump makes no showing of having requested such
restrictions from the Committee or White House, and his
counsel admitted that he did not propose a more limited
injunction along those lines, see Oral Arg. Tr. 36–37.
In short, confronting former President Trump’s claim of
privilege is the hydraulic constitutional force of not only a
reasoned decision by the President that a limited release is in
the interests of the United States, and the uniquely compelling
need of Congress for this information, but also this court’s
“duty of care to ensure that we not needlessly disturb ‘the
compromises and working arrangements that those [Political]
branches themselves have reached.’” Mazars, 140 S. Ct. at
2031 (formatting modified; quoting NLRB v. Noel Canning,
573 U.S. 513, 524–526 (2014)).
2
That accumulation of forces favoring disclosure is at least
equal to, if not greater than, what has supported the disclosure
of the privileged materials of even a sitting President. To
establish a likelihood of success in prevailing, then, former
47
President Trump bears the burden of at least showing some
weighty interest in continued confidentiality that could be
capable of tipping the scales back in his favor, and of “mak[ing]
particularized showings in justification of his claims of
privilege[.]” Senate Select Comm., 498 F.2d at 730. He has
not done so. He has not identified any specific countervailing
need for confidentiality tied to the documents at issue, beyond
their being presidential communications. Neither has he
presented arguments that grapple with the substance of
President Biden’s and Congress’s weighty judgments. Nor has
he made even a preliminary showing that the content of any
particular document lacks relevance to the Committee’s
investigation. He offers instead only a grab-bag of objections
that simply assert without elaboration his superior assessment
of Executive Branch interests, insists that Congress and the
Committee have no legitimate legislative interest in an attack
on the Capitol, and impugns the motives of President Biden and
the House. That falls far short of meeting his burden and makes
it impossible for this court to find any likelihood of success.
a
Because Mr. Trump has sued solely in his “official
capacity” as the “45th President of the United States[,]” Compl.
¶ 20, J.A. 16, he does not assert that disclosure of the
documents before us would harm any personal interests in
privacy or confidentiality. His sole objection is that disclosure
would “burden[] the presidency generally[,]” in light of the
need for “candid advice” and the potential for a “chilling
effect[.]” Appellant Opening Br. 29. In support of this claim,
he presses the undisputed points that the confidentiality of
presidential communications protects “the proper functioning
of the government” and “ensure[s] full and frank advice” for
future Presidents. Appellant Opening Br. 14, 36.
48
That is all he offers. And that is not close to enough.
When a former and incumbent President disagree about the
need to preserve the confidentiality of presidential
communications, the incumbent’s judgment warrants
deference because it is the incumbent who is “vitally concerned
with and in the best position to assess the present and future
needs of the Executive Branch[.]” Nixon v. GSA, 433 U.S. at
449. Mr. Trump’s disagreement with President Biden’s
judgment, by itself, provides the court no basis to override the
sitting President’s judgment.
Nor is such a “generalized interest in confidentiality,”
United States v. Nixon, 418 U.S. at 711, sufficient for a court
to cast aside the January 6th Committee’s exercise of core
legislative functions, let alone enough for a court to throw a
wrench into the ongoing working relationship and
accommodations between the Political Branches.15
Former President Trump’s bare allegations of partisan
motives do not move the needle either. See Appellant Opening
Br. 3, 5–6, 15–17, 21–22, 35, 47; Appellant Reply Br. 1–2, 5–
8, 11, 19, 25–27, 32; Prelim. Inj. Mem. at 1–4, 8, 17, 33–34.
They are unsupported by any plausible factual allegations and
cannot stand up to President Biden’s substantive explanation
for not asserting privilege and Congress’s distinct interest in
investigating and legislating in response to an attack on itself.
To that same point, the presumption of executive regularity
“has been recognized since the early days of the Republic.”
15
The former President makes a vague reference to presidential
discussions during the COVID pandemic in early 2020. See
Appellant Opening Br. 46. But he makes no argument that any of
the documents at issue here involved that topic. Nor is it at all
apparent that the Archivist would treat such communications as
responsive to the Committee’s request, or that President Biden would
decline to assert executive privilege over them.
49
American Fed’n of Gov’t Employees v. Reagan, 870 F.2d 723,
727 (D.C. Cir. 1989). When, as here, “the President exercises
an authority confided to him by law, the presumption is that it
is exercised in pursuance of law.” Id. (quoting Martin v. Mott,
25 U.S. (12 Wheat.) 19, 32–33 (1827)) (alteration in original).
Former President Trump predicts that, going forward,
incumbent Presidents will indiscriminately decline to assert
executive privilege over a former President’s records whenever
they are of the opposite political party. See Appellant Opening
Br. 47. But the possibility of mutually assured destruction of
the privilege cuts against the risk of heedless disclosures.
More to the point, the greatest protection for executive
privilege is the natural self-interest of each new occupant of the
White House. Presidents of both parties have long jealously
guarded the powers and prerogatives of the office. And every
incumbent President will be the next former President. That
gives the incumbent every incentive to afford robust protection
to the confidentiality of presidential communications, even if
only to assure receipt of the best possible advice during his or
her tenure. See Nixon v. GSA, 433 U.S. at 448 (“[A]n
incumbent may be inhibited in disclosing confidences of a
predecessor when he believes that the effect may be to
discourage candid presentation of views by his contemporary
advisers.”). There are, in other words, “obvious political
checks against an incumbent’s abuse of the privilege.” Id.Former President Trump next speculates about certain
communications for which the interests against disclosure
could extend beyond a generalized interest in confidentiality,
such as communications concerning “complex and sensitive
matters of foreign affairs.” Appellant Opening Br. 46.
The problem is that he has not pointed to a single record
in the existing tranches that implicates a delicate matter of
50
foreign affairs or other “complex and sensitive” topics.
Appellant Opening Br. 46. He also puts the cart before the
horse. For even if the Archivist later were to conclude that such
a document was responsive to the Committee’s request, it
“must be presumed” that the sitting President would factor a
document’s sensitivity, foreign policy or otherwise, into a
future decision whether to assert executive privilege. Nixon v.
GSA, 433 U.S. at 449.16
b
Rather than articulate any superseding interest in
confidentiality, former President Trump argues that the courts
are obligated to comb through every single document in
camera to evaluate its privileged nature before it is released.
Appellant Opening Br. 38–39; Appellant Reply Br. 14–15.
Not so.
First of all, in briefing and at oral argument, counsel for
former President Trump was inconsistent in explaining his
request for in camera review. See Appellant Opening Br. 38–
16
Anyhow, given the Article III courts’ general “lack of
competence” in matters of national security policy, Holder v.
Humanitarian Law Project, 561 U.S. 1, 34 (2010) (internal quotation
marks and citations omitted), former President Trump does not
explain how a court could override the sitting President’s judgment
that release of a document does not imperil, or perhaps advances,
foreign relations. See also id. at 34 (“[N]either the Members of this
Court nor most federal judges begin the day with briefings that may
describe new and serious threats to our Nation and its people.”)
(quoting Boumediene v. Bush, 553 U.S. 723, 797 (2008)); cf.
Marbury v. Madison, 5 U.S. (1 Cranch) 137, 166 (1803) (Presidential
decisions that implicate “foreign affairs” are “entrusted to the
executive, [and] the decision of the executive is conclusive”).
.
51
39; Appellant Reply Br. 14–15; Oral Arg. Tr. 62:18–63:7,
65:1–6. To the extent that the former President proposes that
the court determine whether each document constitutes a
privileged presidential communication, that would be a
meaningless exercise. See Oral Arg. Tr. 62:19–23. President
Biden does not dispute that the particular documents at issue
qualify for executive privilege. He instead has made the
deliberate decision not to invoke that privilege. Therefore, the
issue in this case is not whether executive privilege could be
asserted for each document. It is whether a court can override
President Biden’s reasoned decision to forgo privilege as to
them and Congress’s compelling need for them. So even if the
court were to examine each document in camera and determine
that every single one is privileged, we would simply end up
right back where we started.
If what former President Trump means instead is that the
court should hunt through the documents in an effort to espy
important reasons why President Biden’s decision might be ill-
advised, he gets the law backwards. See Oral Arg. Tr. 65:1–6.
Having asserted the importance of confidentiality in these
documents based on his expert viewpoint as the President
during whose term they were created, former President Trump
had the burden of articulating some compelling explanation for
nondisclosure to the court. He cannot stand silent and leave it
to the court to come up with arguments for him.
Former President Trump insists that “[i]t is vital the
Court’s analysis be specific[.]” Appellant Reply Br. 16. Our
analysis can only be as specific as his claims are.
c
Having provided nothing to surmount President Biden’s
considered judgment, former President Trump pivots to
arguing that the January 6th “Committee lacks a specific need
52
for the requested information,” Appellant Opening Br. 16, and
so its disclosure violates the separation of powers.
Former President Trump sets forth several formulations of
the test he believes this court should apply, all of which require
that the January 6th Committee do more than meet its burden
under the Presidential Records Act to show that the requested
documents are “needed for the conduct of its business” and
“not otherwise available[,]” 44 U.S.C. § 2205(2)(C). Most
prominently, he argues that disclosure is forbidden under the
four-factor test laid out in Mazars. Appellant Opening Br. 16,
18–20, 23–31; Appellant Reply Br. 21–24, 27–28. At other
times, he invokes Senate Select Committee’s requirement that
the documents be “demonstrably critical to the responsible
fulfillment of the Committee’s functions.” Appellant Opening
Br. 22–23 (quoting Senate Select Comm., 498 F.2d at 731).
Later, he claims that the Committee must make the
“demonstrated and specific showing of need” that was required
in United States v. Nixon. Appellant Opening Br. 35 (citing
United States v. Nixon, 418 U.S. at 713).
We have significant doubt that any of these tests are
appropriate in the context of a former President’s challenge to
the joint decision of an incumbent President and the Legislative
Branch that disclosure is warranted. All of the cases on which
Mr. Trump relies involved requests for information from a
sitting President, not a former President, and called upon the
courts to resolve an interbranch dispute. The Mazars test, for
example, was expressly tied to “special concerns regarding the
separation of powers” that arise when the “legislative interests
of Congress” clash with the “unique position of the
President[.]” Mazars, 140 S. Ct. at 2035–2036 (internal
quotation marks and citation omitted); cf. United States v.
Nixon, 418 U.S. at 686 (addressing a judicial subpoena issued
to a sitting President); Senate Select Comm., 498 F.2d at 726
53
(addressing a congressional subpoena issued to a sitting
President). Those separation of powers concerns necessarily
have less traction when the request is for records from a former
administration, since the objecting former President no longer
occupies the “unique position of the President,” Mazars, 140
S. Ct. at 2035 (internal quotation marks and citation omitted).
And they have less salience when the Political Branches are in
agreement. Cf. Youngstown Sheet & Tube Co. v. Sawyer, 343
U.S. 579, 635 (1952) (Jackson, J., concurring).
If anything, Nixon v. GSA would seem to be more closely
on point, because it specifically involved a former President’s
objection, over the contrary positions of the incumbent
President and Congress, to the Executive Branch taking
possession of and reviewing his presidential records. There,
the Supreme Court ruled that an “important” congressional
purpose overcame the former President’s privilege claim when,
as here, the incumbent President supported the disclosure.
Nixon v. GSA, 433 U.S. at 454; see id. at 443 (“Only where the
potential for disruption is present must we then determine
whether that impact is justified by an overriding need to
promote objectives within the constitutional authority of
Congress.”). Congress’s interest in investigating the January
6th attack on the Capitol and obtaining information to allow
meaningful legislation easily rises to the level of “important.”
To be sure, Nixon v. GSA did not involve a direct
document request by Congress. But neither did former
President Nixon ask the Court to disrupt an ongoing
accommodation and negotiation process between the Political
Branches—a process that courts historically have stayed out of.
Regardless, even assuming they apply, the legislative
interest at stake passes muster under any of the tests pressed by
former President Trump.
54
(i)
As for the Mazars test, the January 6th Committee plainly
has a “valid legislative purpose” and its inquiry “concern[s] a
subject on which legislation could be had.” Mazars, 140 S. Ct.
at 2031–2032 (internal quotation marks and citations omitted).
In fact, House Resolution 503 expressly authorizes the
Committee to propose legislative measures. H.R. Res. 503
§ 4(a)(3). For example, Congress could (1) pass laws imposing
more serious criminal penalties on those who engage in
violence to prevent the work of governmental institutions; (2)
amend the Electoral Count Act to shore up the procedures for
counting electoral votes and certifying the results of a
presidential election; (3) allocate greater resources to the
Capitol Police and enact legislation to “elevat[e] the security
posture of the United States Capitol Complex,” id.
§ 4(a)(2)(D); or (4) revise the federal government’s
“operational plans, policies, and procedures” for “responding
to targeted violence and domestic terrorism[,]” id. § 4(a)(2)(B),
J.A. 97.
Former President Trump argues that the Committee has an
“improper law enforcement purpose[,]” Appellant Opening Br.
21, because its request constitutes an effort to “try” him “for
* * * wrongdoing[,]” Appellant Opening Br. 21 (quoting
McGrain, 273 U.S. at 179). Not at all. The Committee’s
announced purpose is to “issue a final report to the House
containing such findings, conclusions, and recommendations”
for such “changes in law, policy, procedures, rules, or
regulations” as the Committee “may deem necessary[.]” H.R.
Res. 503 § 4(a)(3), (c). The Committee’s request to the
Archivist reiterates that it “seeks to * * * recommend laws,
policies, procedures, rules, or regulations necessary to protect
our Republic in the future.” Thompson Ltr., J.A. 33. The mere
prospect that misconduct might be exposed does not make the
55
Committee’s request prosecutorial. Missteps and misbehavior
are common fodder for legislation.
Mazars also requires that the “asserted legislative purpose
warrant[] the significant step of involving the President and his
papers.” 140 S. Ct. at 2035. As President Biden stated, the
January 6th Committee has a “sufficient factual predicate” for
obtaining these presidential records, First Remus Ltr., J.A. 107,
because of the President’s direct role in rallying his supporters,
directing them to march to the Capitol, see January 6th Rally
Speech at 3:47:02–3:47:21, and propagating the underlying
false narrative of election fraud. The House has also presented
evidence indicating that, leading up to January 6th, individuals
encouraging “dramatic action” on that day were in frequent
contact with the White House. See H.R. REP. NO. 117-152,
117th Cong., 1st Sess. 6 (2021). And as the Commander-in-
Chief and Chief Law Enforcement Officer on January 6th,
President Trump had control over the sharing of any
intelligence concerning a potential riot and, once the mob
attacked, the decision to deploy (or not) the National Guard and
other federal law enforcement resources to quell the riot.
For those reasons, Congress’s request for records
“adequately identifies its aims and explains why the President’s
information will advance its consideration of the possible
legislation.” Mazars, 140 S. Ct. at 2036. It has provided
“detailed and substantial” evidence of its legislative purpose,
id., and its specific need for presidential records in House
Resolution 503, the Committee’s letter to the Archivist, public
reports, and public statements made by members of the
Committee. See H.R. Res. 503; Thompson Ltr., J.A. 33–44;
H.R. REP. NO. 117-152; 167 CONG. REC. H5759 (daily ed. Oct.
21, 2021) (statement of Rep. Liz Cheney).
56
Nor does Congress have a viable alternative source for this
critical information. See 44 U.S.C. § 2205(2)(C). As President
Biden agreed, the January 6th Committee has shown that these
presidential documents specifically are necessary for the
Committee’s work. Former President Trump has made no
showing that the Committee already has access to information
about what administration officials knew about the January 6th
attack, when they knew it, what actions they took in response,
and how their actions might have affected the events of that
day. Nor has he demonstrated that the Committee could obtain
this same type of information from another source. The
information sought pertains to the activities of former President
Trump and White House staff in “carrying out the * * * duties
of the President” on and around January 6, and those records
are exclusively within the control of the Archivist, 44 U.S.C.
§§ 2201(2), 2202.
For similar reasons, former President Trump’s claim that
the Committee is improperly using him as a “‘case study’ for
general legislation” fails. Mazars, 140 S. Ct. at 2036 (citation
omitted). The Committee is investigating a singular event in
this nation’s history, in which there is a sufficient factual
predicate for inferring that former President Trump and his
advisors played a materially relevant role.
Mr. Trump’s argument that the January 6th Committee’s
request to the Archivist is “broader than reasonably necessary
to support Congress’s legislative objective[,]” Mazars, 140
S. Ct. at 2036, does not work either. He has made no claim that
the documents at issue in this appeal are not relevant to the
Committee’s purpose or that a request capturing those
documents is overbroad. Nor could he. All of the documents
currently at issue pertain to presidential activities on or around
January 6th, or surrounding the election and its aftermath.
57
If forthcoming tranches contain records that Mr. Trump
claims are unmoored from the Committee’s objectives, he can
attempt to raise an overbreadth challenge then. But that dispute
may never arise. The Archivist will winnow out any
documents that are not responsive or that are not “Presidential
records[,]” 44 U.S.C. § 2205(2), such as those that are “strictly
personal” or “strictly campaign-related[,]” J.A. 275 (counsel
for the Executive Branch advising district court that such
documents would not be “appropriate for production”).
More to the point, President Biden could very well agree
to assert executive privilege if aspects of the document request
were to overreach the “unique and extraordinary
circumstances” that underlay his waiver of privilege for these
documents. First Remus Ltr., J.A. 108; see also Second Remus
Ltr., J.A. 113; Third Remus Ltr., J.A. 173–174. Or he could
work with Congress to withdraw its request for those
documents as part of the accommodation process.
In short, the “congressional power of inquiry * * * [and]
the right of resistance to it are to be judged in the concrete, not
on the basis of abstractions.” Barenblatt v. United States, 360
U.S. 109, 112 (1959). Former President Trump’s speculation
about possible problems with possible future disclosures does
nothing to establish a likelihood of success as to these
documents actually slated for disclosure.
Lastly, Mazars requires that we “carefully scrutinize[]”
any “burdens on the President’s time and attention” imposed
by the request for information. 140 S. Ct. at 2036. “[I]n
determining whether [a challenged act] disrupts the proper
balance between the coordinate branches” in that way, the
“proper inquiry focuses on the extent to which it prevents the
Executive Branch from accomplishing its constitutionally
assigned functions.” Nixon v. GSA, 433 U.S. at 443. In this
58
case, President Biden has determined that, thus far, the time
and effort required of him and his staff is within reasonable
bounds and consonant with the grave matters before the
January 6th Committee.
Former President Trump argues that the large number of
potentially responsive records, combined with the limited
amount of time he has to review the records for privileged
materials, imposes a significant burden on him personally.
Appellant Opening Br. 29. But a former President is “in less
need of” a shield “against burdensome requests for
information” because requiring a former President to respond
to a request does not directly implicate the interests of the
Executive Branch or distract the President from executing his
constitutional functions. Nixon v. GSA, 433 U.S. at 448.
Still, if there were no limits to Congress’s ability to drown
a President in burdensome requests the minute he leaves office,
Congress could perhaps use the threat of a post-Presidency
pile-on to try and influence the President’s conduct while in
office. But once again, former President Trump has made no
showing that he has been saddled with anything close to such a
daunting burden. The Archivist is the one who bears the
burden of searching for responsive records. The records he has
found have been separated into manageably sized tranches for
Mr. Trump’s review, which diffuses any burden. And former
President Trump has alleged no actual difficulty completing his
review of the tranches within the allotted timeframes thus far.
If he were to need more time, he could simply request an
extension from the Archivist. See 36 C.F.R. § 1270.44(g)
(“The Archivist may adjust any time period or deadline under
this subpart, as appropriate, to accommodate records requested
under this section.”). In fact, the Archivist has provided
additional time for review once already. J.A. 127. Were the
burden to become unduly demanding at some point in the
59
future, it could very well be that President Biden—who is
simultaneously juggling all manner of presidential
responsibilities—would object, to the benefit of former
President Trump. Indeed, the previous extension was initiated
by President Biden and afforded to him and former President
Trump alike. J.A. 127.
At the end of the day, the Mazars test is of no help to
former President Trump’s effort to demonstrate a likelihood of
success in invalidating the January 6th Committee’s request.
(ii)
For those same reasons, the Committee’s request for these
records readily satisfies the other tests that the former President
proposes.
In Senate Select Committee, this court concluded that
evidence subpoenaed from the sitting President was not
“demonstrably critical” because the House Committee on the
Judiciary already had access to all of the tapes sought by the
Select Committee. 498 F.2d at 731–732. Former President
Trump, by contrast, has made no showing that the records at
issue here are already within the possession of another
committee of the House or Senate. As such, the Committee’s
efforts would not be “merely cumulative[,]” and the records
remain “demonstrably critical[,]” id., to its task of investigating
the January 6th attack.
In United States v. Nixon, the Court held that President
Nixon’s “generalized assertion of privilege” had to “yield to
the demonstrated, specific need for evidence in a pending
criminal trial.” 418 U.S. at 713. Here, the Committee has—as
President Biden agrees—demonstrated a specific and
compelling need for these presidential records because they
provide a unique and critically important window into the
60
events of January 6th that the Committee cannot obtain
elsewhere.
d
The former President’s remaining arguments do not help
his case.
He argues that the Committee has not been authorized by
the full House to request a former President’s records. See
Appellant Opening Br. 32–33. That is wrong. House
Resolution 503 expressly states that “Rule XI of the Rules of
the House of Representatives shall apply to the Select
Committee[,]” with exceptions not relevant here. H.R. Res.
503 § 5(c). And House Rule XI provides that “[s]ubpoenas for
documents or testimony may be issued to * * * the President,
and the Vice President, whether current or former, in a personal
or official capacity, as well as the White House, the Office of
the President, the Executive Office of the President, and any
individual currently or formerly employed in the White House,
Office of the President, or the Executive Office of the
President[.]” House Rule XI.2(m)(3)(D).
Mr. Trump argues in his reply brief, for the first time in this
litigation, that the Presidential Records Act confines an
incumbent President to deciding only the “legal correctness” of
the former President’s privilege claim, without any ability to
make a determination as to whether an assertion of privilege is
in the best interests of the United States. Appellant Reply Br.
10–11. Former President Trump forfeited this statutory
argument by failing to raise it before the district court and
before this court in his opening brief. See American Wildlands
v. Kempthorne, 530 F.3d 991, 1001 (D.C. Cir. 2008) (stating
that issues not argued in the opening brief are forfeited on
appeal); Roosevelt v. E.I. Du Pont de Nemours & Co., 958 F.2d
416, 419 & n.5 (D.C. Cir. 1992) (Absent exceptional
61
circumstances, “it is not our practice to entertain issues first
raised on appeal[.]”). Principles of constitutional avoidance
further counsel against entertaining, without adversarial
briefing, the notion that a statute shuts the sitting President out
of any meaningful role in an exercise of executive privilege
over Executive Branch documents in response to a
congressional request. See Burke, 843 F.2d at 1479 (citing
Nixon v. GSA, 433 U.S. at 449).
Lastly, former President Trump argues that, to the extent
the Presidential Records Act is construed to give the incumbent
President “unfettered discretion to waive former Presidents’
executive privilege,” it is unconstitutional. Appellant Opening
Br. 47. There is nothing “unfettered” about President Biden’s
calibrated judgment in this case.
Anyhow, the Presidential Records Act is explicit that
“[n]othing in [the] Act shall be construed to confirm, limit, or
expand any constitutionally-based privilege which may be
available to an incumbent or former President.” 44 U.S.C.
§ 2204(c)(2). Therefore, the Presidential Records Act gives the
incumbent President no more power than the Constitution
already does. And under the Constitution, the incumbent
President does not have “unfettered discretion” to release
records over a former President’s objection given the former
President’s opportunity to obtain judicial review of his
privilege claim. See Nixon v. GSA, 433 U.S. at 439.
The problem for Mr. Trump is not that the Constitution
affords him no say in the matter. It is his failure to make any
relevant showing of a supervening interest in confidentiality
that might be capable of overcoming President Biden’s
considered and weighty judgment that Congress’s imperative
need warrants the disclosure of these documents specifically
tied to the investigation of the events of January 6th.
62
e
One factor cutting in former President Trump’s favor is
that these records are being sought so soon after his Presidency
ended. In Nixon v. GSA, the Court explained that the
“confidentiality of executive communications” does not
dissipate as soon as a President’s term ends. Rather, it is
“subject to erosion over time after an administration leaves
office.” 433 U.S. at 451. Here, less than a year has passed
since Mr. Trump left office.
But the former President does not make this argument. He
only makes an unelaborated reference to the fact of the timing
in his opening brief. See Appellant Opening Br. 36. In this
court, “mentioning an argument in the most skeletal way,
leaving the court to do counsel’s work, create the ossature for
the argument, and put flesh on its bones is tantamount to failing
to raise it.” Maloney v. Murphy, 984 F.3d 50, 68 (D.C. Cir.
2020) (internal quotation marks and citation omitted). He
certainly does not present the argument in a manner that gets
him any closer to demonstrating a likelihood of success on the
merits. That is especially so given Congress’s demonstrated
need for the information now because it is investigating a last-
ditch effort to thwart the peaceful transfer of power from
former President Trump to President Biden. In light of the
regularity of federal elections, we credit the Committee’s
assertion that its work is “urgent[,]” Thompson Ltr., J.A. 33,
as it seeks to understand the violence that marked the end of
the last Presidency and to prevent any recurrence. First Remus
Ltr., J.A. 107; see also Second Remus Ltr., J.A. 113; Third
Remus Ltr., J.A. 173–174.17
17
At times, former President Trump’s briefing suggested that
he was pressing a freestanding challenge to the statutory and
63
V
Former President Trump has also failed to satisfy any of the
remaining preliminary injunction factors.
A
To obtain a preliminary injunction, former President
Trump must show that the executive-privilege interests he
seeks to vindicate will likely be irreparably harmed. See
Winter, 555 U.S. at 20. Because Mr. Trump seeks this
preliminary injunction solely in his “official capacity as a
former President[,]” the only relevant injury would be one to
the present and future interests of the Executive Branch itself
in confidentiality, Compl. ¶ 20, J.A. 16. That is because the
interest in confidentiality of presidential communications “is
not for the benefit of the President as an individual, but for the
benefit of the Republic.” Nixon v. GSA, 433 U.S. at 449(citation omitted). So the interests of the Executive Branch are
the lens through which we view former President Trump’s
concerns about vitiating the confidentiality that he relied upon
“when the communications and records at issue were
created[,]” Appellant Opening Br. 51, and his duty to “protect[]
the records and communications created during [his] term of
office,” Appellant Opening Br. 49.
constitutional validity of the Committee’s request, separate and apart
from his executive privilege claim. See, e.g., Appellant Opening Br.
18; Appellant Reply Br. 1. But at oral argument, Mr. Trump’s
counsel was explicit that he is not bringing such a challenge and that
all of his arguments about the statutory and constitutional validity of
the Committee request are part and parcel of his argument that the
former President’s claim of executive privilege over the specific
documents at issue here should prevail. See Oral Arg. Tr. 14:21–
15:23.
64
The difficulty for Mr. Trump’s claim of irreparable harm is
that President Biden has already determined that disclosure of
the privileged documents in the first three tranches advances
the interests of the Executive Branch and is affirmatively in the
interests of the United States. Having weighed the interests of
the privilege against the January 6th Committee’s compelling
need for this information, President Biden made a deliberate
decision to forgo executive privilege and to disclose the
documents. Given the “unprecedented” attack on the Capitol
and the tradition of peaceful transfers of power, as well as the
“unique and extraordinary circumstances” precipitating and
surrounding the attack, President Biden explained that “an
assertion of executive privilege is not in the best interests of the
United States[.]” First Remus Ltr., J.A. 107–108; see also
Second Remus Ltr., J.A. 113; Third Remus Ltr., J.A. 173–174.
As between a former President and an incumbent, it “must
be presumed” by a court that the incumbent President is “in the
best position to assess the present and future needs of the
Executive Branch” and to determine whether disclosure
“impermissibly intrudes into the executive function[,]” Nixon
v. GSA, 433 U.S. at 449, or otherwise will “prevent[] the
Executive Branch from accomplishing its constitutionally
assigned functions,” id. at 443.
To be sure, executive privilege is vital to the effective
operations of the Presidency. See United States v. Nixon, 418
U.S. at 708. But it is a qualified privilege that has been waived
by Presidents—including by President Trump—when they
determined that the overriding interests of the Nation warranted
it. See page 41, supra. The former President has not alleged
or shown that such waivers irreparably harmed the operation of
the Executive Branch or impaired his ability as President, or
the ability of other Presidents, to obtain needed confidential
advice.
65
The uniqueness of the circumstances prompting disclosure
here further mitigates any potential harm to the “full and frank”
nature of presidential communications. Nixon v. GSA, 433 U.S.
at 449 (citation omitted). Advisors of the President are unlikely
to “be moved to temper the candor of their remarks” simply
because of the “infrequent occasions” on which an event as
unparalleled as January 6th might arise. United States v. Nixon,
418 U.S. at 712.
Former President Trump argues that President Biden “lacks
context and information concerning the documents in
question” and “cannot fairly evaluate President Trump’s
rights.” Appellant Opening Br. 51. But beyond that
unelaborated assertion, Mr. Trump has made no record nor
even hinted to this court what context or information has been
overlooked or what information could override President
Biden’s calculus. We cannot just presume it. Nor can we, on
our own, hunt through the documents for sensitivities or
concerns that have never been articulated by Mr. Trump. The
former President no doubt begs to differ with President Biden’s
judgment. But that difference of opinion by itself establishes
no likelihood of irreparable harm to the Presidency or the
interests protected by executive privilege.
We acknowledge that irreparable injury is frequently found
when a movant seeks to prevent the disclosure of privileged
documents pending litigation. That is generally because the
holders of the privileges will, themselves, be irreparably
harmed by release, and time is not of the essence.
This case is materially different from the mine-run of
privilege cases. The privilege being asserted is not a personal
privilege belonging to former President Trump; he stewards it
for the benefit of the Republic. The interests the privilege
protects are those of the Presidency itself, not former President
66
Trump individually. And the President has determined that
immediate disclosure will promote, not injure, the national
interest, and that delay here is itself injurious.18
B
Mr. Trump argues that the Committee “would suffer no
harm by delaying production while the parties litigate the
request’s validity.” Appellant Opening Br. 52. We disagree.
Both the public interest and the balance of hardships decidedly
disfavor issuance of a preliminary injunction.
Even under ordinary circumstances, there is a strong public
interest in Congress carrying out its lawful investigations,
McGrain, 273 U.S. at 174, and courts must take care not to
unnecessarily “halt the functions of a coordinate branch,”
Eastland, 421 U.S. at 511 n.17.
That public interest is heightened when, as here, the
legislature is proceeding with urgency to prevent violent
attacks on the federal government and disruptions to the
peaceful transfer of power. Importantly, the Supreme Court
has instructed that Congress’s “desire to restore public
confidence in our political processes” by “facilitating a full
airing of the events leading to” such political crises constitutes
a “substantial public interest[.]” Nixon v. GSA, 433 U.S. at 453.
Reinforcing that public interest, President Biden has
concluded on behalf of the Executive Branch that disclosure is
“in the best interests of the United States[.]” First Remus Ltr.,
18
Nor is an injunction necessary to preserve jurisdiction.
Disclosure of these documents will not end the case as more tranches
of documents are forthcoming. See also note 7, supra.
67
J.A. 107; see also Second Remus Ltr., J.A. 113; Third Remus
Ltr., J.A. 173–174.
Mr. Trump has not advanced any formulation of the public
interest or balance of hardships that can overcome those
weighty interests and concerns.
*****
For all of the foregoing reasons, former President Trump
has not shown that he is entitled to a preliminary injunction.
We do not come to that conclusion lightly. The
confidentiality of presidential communications is critical to the
effective functioning of the Presidency for the reasons that
former President Trump presses, and his effort to vindicate that
interest is itself a right of constitutional import.
But our Constitution divides, checks, and balances power
to preserve democracy and to ensure liberty. For that reason,
the executive privilege for presidential communications is a
qualified one that Mr. Trump agrees must give way when
necessary to protect overriding interests. See Oral Arg. Tr.
33:18–21, 34:23–25. The President and the Legislative Branch
have shown a national interest in and pressing need for the
prompt disclosure of these documents.
What Mr. Trump seeks is to have an Article III court
intervene and nullify those judgments of the President and
Congress, delay the Committee’s work, and derail the
negotiations and accommodations that the Political Branches
have made. 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.
68
Benjamin Franklin said, at the founding, that we have “[a]
Republic”—“if [we] can keep it.”19 The events of January 6th
exposed the fragility of those democratic institutions and
traditions that we had perhaps come to take for granted. In
response, the President of the United States 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. 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 judgment of the district court denying a preliminary
injunction is affirmed.20
So ordered.
19
PAPERS OF DR. JAMES MCHENRY ON THE FEDERAL
CONVENTION OF 1787 (1787), in DOCUMENTS ILLUSTRATIVE OF
THE FORMATION OF THE UNION OF THE AMERICAN STATES 952
(Charles C. Tansill ed., 1927).
20
This court’s administrative injunction, entered November 11,
2021, will be dissolved in 14 days, reflecting the amount of time the
former President’s counsel requested to file a petition for a writ of
certiorari and an accompanying motion for an injunction pending
review with the Supreme Court. See Oral Arg. Tr. 152:21–23. But
if such a motion is filed, the administrative injunction will dissolve
upon the Supreme Court’s disposition of that motion.