Former President Trump and the Jan. 6 select committee will face off in court on Tuesday over whether he can use executive privilege claims to block lawmakers from obtaining extensive internal White House records.
The fast-moving case could have ripple effects on Congress’s ability to conduct oversight of the executive branch, and the select committee is seeking a quick and decisive victory to set the tone for their investigation.
Trump is asking the D.C. Circuit Court of Appeals to overturn a lower court’s ruling that the National Archives and Records Administration (NARA) may hand over the records to Congress. His lawyers argue that the Biden administration’s refusal to honor the former president’s claims of executive privilege violate Trump’s rights and set a dangerous precedent for future conflicts between incumbent and former presidents.
“The stakes in this case are high,” Trump’s legal team wrote in a brief earlier this month. “A decision upholding the Committees’ request to NARA would have enormous consequences, forever changing the dynamics between the political branches. It is naïve to assume that the fallout will be limited to President Trump or the events of January 6, 2021. Every Congress will point to some unprecedented thing about ‘this President’ to justify a request for his presidential records.
“In these hyper-partisan times, Congress will increasingly and inevitably use this new weapon to perpetually harass its political rival.”
Trump and members of his inner circle who have been subpoenaed by the select committee have employed what appear to be tactics aimed at delaying the Democratic-led investigation. The select committee’s lawyers have told the D.C. Circuit that there is an urgent need for the records it has requested from NARA and that the investigation will suffer if Trump is allowed to stall for time.
“Delay itself would inflict a serious constitutional injury on the Select Committee by interfering with its legislative duty. The Select Committee needs the documents now because they will shape the direction of the investigation,” the select committee’s legal team wrote in its brief. “For example, the documents could inform which witnesses to depose and what questions to ask them, as well as whether further subpoenas should be issued to others.”
The arguments on Tuesday will likely focus on whether the select committee has a valid legislative purpose for seeking the documents and how much authority, if any, Trump has as a former president to block his successor from handing over executive branch records to Congress.
Last week, the three-judge panel that will be deciding the case for the D.C. circuit added a new wrinkle to the legal challenge, requesting that the parties be prepared to discuss during oral arguments on Tuesday whether the court even has jurisdiction to hear the case.
The panel’s directive could prove to be an ominous sign for Trump, but it’s unclear how much of a factor the issue will be, as it has not been addressed by either party or the lower court judge in the case thus far.
The arguments come as the select committee is ramping up its investigation, issuing a new round of subpoenas in recent weeks to Alex Jones, Roger Stone and the leaders of the right-wing Oath Keepers and Proud Boys groups.