Court puts release of White House Jan. 6 records on hold

Oral arguments set for Nov. 30, but it's unclear when the appeals court might rule after that

Then-President Donald Trump speaks to supporters from the Ellipse at the White House on  Jan. 6 as Congress prepared to certify Electoral College making Joe Biden winner of the 2020 election. (Bill Clark/CQ Roll Call)
Then-President Donald Trump speaks to supporters from the Ellipse at the White House on Jan. 6 as Congress prepared to certify Electoral College making Joe Biden winner of the 2020 election. (Bill Clark/CQ Roll Call)
Posted November 11, 2021 at 4:52pm

A federal appeals court on Thursday temporarily halted the imminent release of White House records to the House select committee investigating the Jan. 6 attack, and set oral argument for Nov. 30 on former President Donald Trump’s appeal.

A three-judge panel of the U.S. Court of Appeals for the District of Columbia issued that order the day before the National Archives and Records Administration was set to give the first batch of records to the House absent a court order.

Trump’s lawyers had asked the appeals court for a “brief pause” in the production of records while the former president seeks a review of a district court ruling this week. That lower court ruling rejected Trump’s effort to stop the release of some records to the Jan. 6 panel, and also rejected a request to put that ruling on hold while his lawsuit moves through the courts.

“In this appeal, the Court will consider novel and important constitutional issues of first impression concerning separation of powers, presidential records and executive privilege,” Trump’s attorneys wrote in the emergency motion.

Without that order, “President Trump risks imminently losing his opportunity to obtain any meaningful remedy and the case could be mooted,” Trump’s attorneys wrote.

Attorneys for the Archives and the House did not take a position on whether there should be a short delay in production while the D.C. Circuit decides whether the lower court order should be upheld, Trump’s attorneys told the court.

Not only are the records at issue in the lawsuit, but the timing could be critical to the committee finishing its investigation when it still matters, House attorneys have said in the case. The oral arguments are on an expedited schedule for the D.C. Circuit, but it’s unclear when they might rule after that.

The three judges on the panel that will decide the case were all appointed by Democratic presidents. Judges Patricia A. Millett and Robert L. Wilkins were picked by President Barack Obama. And Ketanji Brown Jackson was picked by President Joe Biden to fill the vacancy after Merrick Garland left the bench to become attorney general.

The House Jan. 6 panel requested records related to dozens of people, both in and out of the Trump administration. That includes Trump and his family members, as well as “any documents and communications involving White House personnel and any Member of Congress” related to the Jan. 6 attack or the validity of the presidential election.

Trump argues that the request does not have any legitimate legislative purpose, and that Trump has asserted executive privilege over the documents, which is meant to protect a president’s ability to get candid advice without the threat those conversations quickly will become public.

U.S. District Judge Tanya Chutkan in Washington, in ruling that the House panel should get the records, wrote that it is Biden’s decision not to assert executive privilege, and that courts shouldn't second guess a president's determination on that.

And Chutkan found that Congress has a legitimate legislative purpose to seek the records, even on such a broad request. The judge wrote that the legislative and executive branches agree that the nation’s interest is best served by a disclosure to Congress, and courts should not step into that.