Tuesday, October 19, 2021
Former President Donald Trump yesterday sued to stop the House Select Committee to Investigate the January 6th Attack on the United States Capitol from obtaining White House and other records from the National Archives.
The move comes after the Committee requested records related to the insurrection from the Archives, and President Biden declined to assert executive privilege to halt their release.
Trump's lawsuit claims principally that the Committee lacks a "legitimate legislative purpose" in the material and therefore exceeds its Article I authority. "No investigation can be an end in itself; there is nothing in the overwhelming majority of the records sought that could reasonably be justified as a means of facilitating the legislative task of enacting, amending, or repealing laws." The lawsuit goes on to claim that the Committee's work looks like law enforcement, not law making, in violation of the separation of powers.
In pitching the lack-of-legitimate-lawmaking-purpose claim, the complaint relies on the Court's four-factor approach in Mazars. At least some of the Mazars analysis, however, turned on the fact that congressional committees sought personal financial records (and not official records) of the president. The complaint doesn't try to square that reasoning in Mazars with the fact that the Select Committee seeks only official records.
The complaint also doesn't seriously wrestle with the idea that the Committee seeks the documents to investigate an attack on Congress to stop the electoral-vote count. Seems like that, if anything, would pretty squarely fall within Congress's "legitimate legislative purpose."
The lawsuit also claims executive privilege, attorney-client privilege, attorney work-product privilege, and deliberative process privilege; and it contends that the requested material touches on national security and law enforcement. It contends that to the extent that the Presidential Records Act authorizes the sitting president to override the former president's assertion of executive privilege, the PRA is unconstitutional.
The suit asks the court to declare that "the Committee's requests are invalid and unenforceable under the Constitution and laws of the United States," or, alternatively, to declare "that the Presidential Records Act is an unconstitutional violation of the separation of powers and is void ab initio." It also asks for preliminary and permanent injunctions to stop the Committee "from taking any actions to enforce the requests, from imposing sanctions for noncompliance with the requests, and from inspecting, using, maintaining, or disclosing any information obtained as a result of the requests," and to stop the Archives from releasing the documents, at least until "Trump has had sufficient opportunity to conduct a comprehensive review of all records the Archivist intends to produce before any presidential record is produced to the Committee."