WASHINGTON — Former President Donald Trump’s attempt to use “executive privilege” to cover up his actions before and during the Jan. 6 attack on the U.S. Capitol ran into a federal judge Thursday who appeared unconvinced by his arguments.
U.S. District Court Judge Tanya Chutkan wondered what the basis was for even questioning President Joe Biden’s decision to release documents related to the insurrection, given that case law states that the current president is presumed to be acting in the national interest in such matters.
“Isn’t the best person to determine executive privilege the executive?” Chutkan asked Trump lawyer Justin Clark.
Clark answered: “Not the incumbent executive.”
Thursday’s hearing was meant to determine whether an injunction should be issued to block the National Archives’ Nov. 12 release of the first set of documents from Trump and his staff to the House select committee investigating the events of Jan. 6.
Trump’s lawyers had argued that a 1974 Supreme Court case regarding Richard Nixon’s attempt to have White House recordings he had made destroyed after he resigned from office gave Trump the right to assert privilege even if Biden refused to do so. But Chutkan pointed out that Congress had superseded that case by passing the Presidential Records Act in 1978, which gives the sitting president the ultimate decision on whether to assert privilege.
“I’m not sure that case is as helpful to you as you think it is,” Chutkan told Clark. She added that Congress seemed to have a legitimate interest in finding out how the insurrection came to be. “The Jan. 6 riot happened in the Capitol. That is literally Congress’ house.”
Clark further argued that Chutkan needed to grant an injunction blocking next week’s scheduled release because Trump would suffer “irreparable harm” if she didn’t. “When those documents are out the door and go to Congress, they are out,” he said.
Chutkan said she agreed that releasing the papers was irreversible, but asked what basis Trump had to keep them secret, given that they are all public records. “We’re talking about documents that are quintessentially about government business. Are we not?” she said. “Where is the harm? Tell me the harm.”
“The harm exists to the institution of the presidency,” Clark responded.
To which Chutkan countered: “Well, the current president disagrees. Shouldn’t that weigh in?”
Chutkan said she did agree with Trump’s lawyers on one point: that the committee’s requests for documents seemed “alarmingly broad,” asking for some records going back to April 2020, including polling data.
Douglas Letter, House general counsel, said that date was relevant because it was when Trump began falsely claiming in Twitter posts that the coming election would be rigged if he lost.
Chutkan, though, wondered whether trying to make sense of Trump’s tweets was a good use of time. “I’m not sure there is an answer about why the president was tweeting what he was tweeting,” she said.
Letter added that the question of relevance and broadness was not one for the federal judiciary to decide. “They are broad, your honor. But it’s a separation of powers issue. That’s for Congress to decide,” he said. “The president himself was fomenting this attack on Congress.”
Both Letter and Justice Department lawyer Elizabeth Shapiro, representing the National Archives, said that the 1978 law spells out how disputes about executive privilege between current and former presidents are to be handled: with the deference going to the current one.
“They are records of the United States,” Shapiro said. “He is not personally injured by their disclosure.”
Chutkan, who was appointed to the federal bench by former President Barack Obama in 2014, has earned a reputation for seeing the Jan. 6 attack as a serious threat against the United States and has, at times, given harsher sentences to insurrectionists than those recommended by prosecutors.
“There have to be consequences for participating in an attempted violent overthrow of the government, beyond sitting at home,” she said in one case.
At the conclusion of Thursday’s hour-and-a-half hearing, the judge said that she was cognizant of the Nov. 12 deadline. “I will issue my opinion expeditiously.”
Trump became the first president in 232 years of U.S. elections to refuse to turn over power peacefully to his successor.
He spent weeks attacking the legitimacy of the Nov. 3 contest he lost, starting his lies in the predawn hours of Nov. 4 that he had really won in a “landslide” and that his victory was being “stolen” from him. Those falsehoods continued through a long string of failed lawsuits challenging the results in a handful of states.
Trump and some of his advisers even discussed using the United States military by invoking the Insurrection Act or declaring martial law to retain power despite having lost the election, including by seizing voting machines and ordering “re-votes” in states Biden narrowly won.
But military leaders had made clear they would not involve themselves in the political process, so after the Electoral College finally voted on Dec. 14, making Biden’s win official, Trump instead turned to a last-ditch scheme to pressure his own vice president into canceling the ballots of millions of voters in several states Biden won and declaring Trump the winner during the pro-forma congressional certification of the election results on Jan. 6.
Trump asked his followers to come to Washington that day, and then told the tens of thousands who showed up to march on the Capitol to intimidate Vice President Mike Pence into doing what Trump wanted. “When you catch somebody in a fraud, you’re allowed to go by very different rules,” Trump said.
The mob of supporters he incited attempted to do his bidding by storming the building. They even chanted “Hang Mike Pence” after Pence refused to comply with Trump’s demands.
A police officer died after being assaulted during the insurrection, and four others took their own lives in the days and weeks that followed. One of the rioters was fatally shot as she climbed through a broken window into an anteroom containing still-evacuating House members, and three others in the crowd died during the melee.
While the House impeached Trump for inciting the attack, all but seven Senate Republicans, led by their leader, Kentucky’s Mitch McConnell, chose not to convict him — thereby letting Trump continue his political career even as faces several investigations into his post-election actions.
Trump and his allies are now engaged in a campaign to portray the rioter who was shot, Ashli Babbitt, as a martyr and the hundreds of others who have been arrested as victims of political persecution. Trump himself continues to suggest he will run for the 2024 GOP nomination and is using his Save America committee’s money to continue spreading the same falsehoods that culminated in the violence of Jan. 6.