The House told a federal appeals court Monday that there is an urgent need to get White House records related to the Jan. 6 attack on the Capitol, because they will shape a select committee’s investigation and potential legislation to ward off “future attacks on democracy” in upcoming elections.
Attorneys for the House filed the brief as the U.S. Court of Appeals for the District of Columbia Circuit quickly considers whether a lower court judge got it right when she declined to block the release of records to the panel from the National Archives and Records Administration.
Former President Donald Trump has appealed a lower court ruling that found earlier this month the House had the power to get the records, as well as a ruling that declined to stop the production of them to Congress while Trump continues a fight in the courts to keep them from the committee.
Trump’s attorneys argued in a brief last week that the House select committee does not have a legitimate basis to see the records and is harassing a political rival and the production should be put on hold as the legal fight plays out.
The House countered in its brief Monday that an injunction that halts disclosure during a court fight would cause substantial harm to the select committee and ongoing legislative activities.
“The Select Committee needs the documents now because they will shape the direction of the investigation,” the House brief states. “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.”
And the House rebutted an argument from Trump that lawmakers have time to wait because the next presidential election is three years away. “But future elections are imminent and there could be future attacks on democracy rooted in conduct occurring well before the election,” the House wrote.
At this early point in the legal fight, when it comes to getting an injunction to stop the production of records, Trump needs to convince the appeals court he is likely to win the lawsuit. The Archives had been set to give the first batch of records to the House on Nov. 12, absent a court order.
A three-judge panel of the D.C. Circuit paused the disclosure of records and set oral argument for Nov. 30, an expedited timeline that heightens expectations the panel would rule quickly after that.
The House brief Monday also contends that the select committee’s purpose in getting the records is “manifestly legitimate,” and any inquiry into Jan. 6 “that did not insist on examining Mr. Trump’s documents and communications would be worse than useless — the equivalent of staging a production of ‘Hamlet’ without the Prince of Denmark.”
Trump’s actions and record of statements that cast doubt on the 2020 election results “provides an abundant basis to seek the nonpublic records of the person whom the attackers sought to maintain in the White House, and whom many have claimed sent them to attack Congress,” the House wrote in the brief.
To the extent the House select committee is singling out Trump, well, that’s because of his actions, the attorneys wrote.
“Mr. Trump is — as of now — a case of one. He is — as of now — the only failed Presidential candidate not to concede, to spend months spreading lies about the election, to encourage a self-coup that would illegally keep him in office, or to inspire a mob to attack the Capitol,” the House brief states. “There is no one more important to study to develop legislation that will prevent the repetition of such acts.”
Congress might want to revise the mechanics of the electoral counting, or enhance the legal consequences for a president who reportedly knew an attack was occurring yet took no action to stop it, the House wrote.
Lawmakers could also make recommendations for how to prevent future presidents from pressuring the Justice Department to support false claims about an election, or review laws about a president that takes steps to convince state election officials to “find votes” for a campaign, the House wrote. The reference to finding votes stems from Trump, in a recorded conversation, imploring Georgia state officials to find the votes that would overturn Biden’s victory there.
The only harm that Trump asserts is that the release of the requested records will compromise the interests of the executive branch, the House wrote, “but that assertion of harm is far outweighed by the surpassing public interest in a complete and timely investigation of the attack on the Capitol, as President Biden has determined.”
Former members weigh in
Meanwhile, a bipartisan group of 77 former members of Congress on Monday filed a brief in the case to say that Trump is doing everything in his power to obstruct the investigation into what amounted to an assault on the Constitution.
The courts should reject Trump’s “attempts to use armchair assertions of executive privilege from Mar-a-Lago to elevate his personal self-interest ahead of the Constitution,” the former member brief states.
Democrats in the group include former Rep. Henry Waxman of California, chair of the Oversight and Government Reform Committee in 2007 and 2008; former Rep. Richard Gephardt of Missouri, House majority leader from 1989 to 1995; and former Rep. David Skaggs of Colorado, chair of the board of directors of the Office of Congressional Ethics from 2019 to 2021.
Republicans in the group include former Rep. Mickey Edwards of Oklahoma, who was chair of the House Republican Policy Committee from 1989 to 1993; former Rep. Bob Inglis of South Carolina; former Rep. Tom Petri of Wisconsin; and former Rep. Thomas Coleman of Missouri.