WASHINGTON — A federal court order late Tuesday may be a worrisome sign for former President Donald Trump in his effort to assert executive privilege over documents sought by a House committee investigating the Jan. 6 attack on the Capitol.
The U.S. Circuit Court of Appeals for the District of Columbia notified lawyers for Trump, the House committee and the National Archives that they should be prepared to address whether the court even has the legal authority to hear the dispute. Oral arguments are scheduled for Nov. 30.
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The committee investigating the riot has asked the National Archives to turn over scores of Trump administration documents — including memos, emails, records of White House conversations and visitor logs — as it investigates the origins of the attack.
The House panel is seeking Trump's records from the Archives because the agency maintains all documents from past administrations. Trump claimed executive privilege over some of the material, but President Joe Biden said the records should be released to Congress, citing the importance of the bipartisan committee's work.
U.S. District Judge Tanya S. Chutkan this month ordered the Archives to hand over the material, but the appeals court granted a brief stay to take a longer look at the issue.
Late Tuesday, the appeals court ordered the lawyers in the case to be prepared to address the jurisdiction issue. The fact that the court is wondering about its own authority to take up the case is telling: Courts are typically protective of their jurisdictions.
The court raised the question on its own, meaning it was not suggested by the lawyers in the case. It asked: "Does the provision in the Presidential Records Act providing that the Archivist’s 'determination whether access to a Presidential record ... shall be restricted ... shall not be subject to judicial review, except as provided in subsection (e) of this section' ... implicate this court’s or the district court’s jurisdiction in this case?"
The court cited a 2001 case involving a challenge to the plans for the World War II Memorial on the National Mall in Washington. Congress had passed a law saying no court could review the plans. The challengers argued that the legislative language was unconstitutional, but an appeals court disagreed and tossed the lawsuit.
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If the appeals court were to take similar action in Trump’s case, he could appeal to the Supreme Court. But if his lawsuit is ultimately dismissed, it would pave the way for the Jan. 6 committee to get documents from the Archives.
Tuesday's order also directed the lawyers to be ready to answer a second question: "If so, what effect, if any, do [those provisions] have on the subject matter jurisdiction of the district court to adjudicate any of the requests listed in the Complaint’s Claim for Relief?"
Lawyers for Trump have argued that the congressional committee had no proper legislative purpose for seeking his White House records and that it instead launched the investigation to "intimidate and harass President Trump and his closest advisors under the guise of investigating the events of January 6, 2021."
The committee responded by saying in its court filings that it needs the records "to complete a thorough investigation into how the actions of the former President, his advisers, and other government officials may have contributed to the attack on Congress to impede the peaceful transfer of Presidential power."
In addition to seeking Trump White House records, the committee has issued numerous subpoenas in recent weeks for Trump administration officials and key allies of the former president, including Roger Stone and Alex Jones.