A federal judge sounded skeptical Thursday of former President Donald Trump’s request to halt a House select committee from getting most of the White House records it has requested in an investigation into the Jan. 6 attack on the Capitol by his supporters.
U.S. District Judge Tanya Chutkan in Washington heard arguments from lawyers for Trump, the Justice Department and the House as she weighs the former president’s lawsuit to stop the transmission of documents from the National Archives and Records Administration, or NARA.
NARA said it would turn over the first batch on Nov. 12 absent a court order. Chutkan said Thursday that she would rule quickly on Trump’s motion for an injunction.
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.
Chutkan raised concerns to the House about the scope of some of the committee’s requests, such as certain polling data and documents from 40 people that stretch back as far as April 2020, which she called “unbelievably broad.”
These communications could be about unrelated things, including conversations with foreign leaders or about national security, Chutkan said.
House General Counsel Doug Letter told Chutkan that the requests are broad, but the scope of an investigation is for Congress to decide. “It would be startling for you to tell Congress, ‘I know better than you what you need, you don’t need that,’” Letter said.
The committee wants to know how much of an effort to discredit the results of the 2020 election came from inside the White House, or from members of Congress, or from outside groups such as the Proud Boys, Letter said.
“How broad was this whole problem we now face? Where did it come from?” Letter said. “We want to make sure this never happens again and that means going way before Jan. 6 itself.”
And Letter underscored that President Joe Biden, who as holder of the office of the president has the power to determine what should be covered by executive privilege, has told NARA to turn over the records to the committee.
Trump has asserted executive privilege over some of the documents, as well as a protective assertion of executive privilege over any additional materials that the Jan. 6 panel requests.
Letter said that if Trump wants to raise concerns about executive privilege of documents, he can do so with Biden, “but that’s not a question here for this court.”
Chutkan said she “would be on stronger footing” to limit the scope of the committee’s request if Biden had disagreed with Congress on the executive privilege claims.
The judge had sharper questions for Trump’s lawyer, Justin Clark, who said there were constitutional questions in the case — the first lawsuit in which a former president has disagreed with a current president about executive privilege claims.
Clark told Chutkan that she should do a document-by-document review of the privilege claims and that allowing the request to go forward would “open the door to partisanship of document requests and blow a hole in executive privilege.” Not blocking the release of records now would mean damage that couldn’t be undone if Trump has the better of that question, Clark said.
But the judge said that while that is a dispute between a former and current president, she didn’t see a separation-of-powers issue for her to weigh in on because the executive and legislative branches agree on this request.
Chutkan also said she didn’t see any language in a law or any case that convinces her that courts are required to get involved in this situation and do a document-by-document review.
Justice Department lawyer Elizabeth Shapiro told Chutkan that it would be “very odd” if a court didn’t defer to the current president’s determination that the public interest in these documents clearly outweighs the confidentiality concerns underlying executive privilege.
“Because essentially what plaintiff is asking you to do is for a court to superintend a sitting president’s decision not to assert privilege,” Shapiro said.
Chutkan’s decision likely won’t be the last word since the losing side could appeal. And a determined Trump could appeal such a case about presidential and congressional power to the Supreme Court before it is finally resolved.