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Executive Privilege

Former Presidential Records Case

Major Issue: Whether a former president can block the National Archives from producing to Congress certain records from his administration when the sitting president has determined no executive privilege applies to those records. 

Case Status: Complete.

Case Description: On October 18, 2021, former President Donald Trump filed a complaint in federal D.C. District Court to prevent the National Archives from producing to the House Select Committee to Investigate the January 6th Attack on the U.S. Capitol certain records from his administration. Mr. Trump asserted that the records were protected by executive privilege, even though President Joe Biden had concluded that executive privilege did not apply and the records should be produced to Congress.

Procedural Posture: On October 18, 2021, former President Trump asked the D.C. district court to issue a preliminary injunction to bar the National Archives from producing certain records from his administration to the Select Committee. The National Archives, represented by the U.S. Department of Justice, and the U.S. House opposed the injunction and asked for the complaint to be dismissed. On November 9, 2021, the district court denied the request for a preliminary injunction and, on November 11, denied an emergency request for an injunction pending appeal. On November 11, 2021, Mr. Trump appealed the ruling, and the D.C. Circuit Court of Appeals granted an injunction pending appeal and ordered expedited briefing. On December 9, 2021, the Appeals Court affirmed the district court decision and denied the motion for a preliminary injunction. On December 23, 2021, Mr. Trump filed an appeal with the Supreme Court. On January 19, 2022, the Supreme Court denied Mr. Trump’s request to stay document production pending his appeal. 

On October 18, 2021, former President Donald Trump sued the National Archives and Records Administration and Archivist David Ferriero as well as the House Select Committee to Investigate the January 6th Attack on the U.S. Capitol and its Chair Bennie Thompson to prevent the National Archives from producing certain records from his administration to the Select Committee. Case No. 12-cv-2769 was assigned to D.C. District Judge Tanya Chutkan. The National Archives and the House opposed Mr. Trump’s request for a preliminary injunction and asked for the complaint to be dismissed. An amicus brief filed by a bipartisan group of 66 former Members of Congress supported case dismissal. On November 9, 2021, the district court denied the motion for an injunction and, on November 11, denied an emergency request for an injunction pending appeal. On November 11, 2021, Mr. Trump appealed the district court’s rulings.

On Nov. 11, 2021, Mr. Trump filed an appeal of the decision issued by the D.C. district court and requested an emergency injunction to prevent any document production pending the appeal. A three-judge panel from the D.C. Circuit Court of Appeals, with Judges Jackson, Millett, and Wilkins, was assigned to Case No. 21-5254.  On Nov. 11, 2021, the panel granted an injunction to prevent document production pending review of the case. The panel held oral argument on Nov. 30, 2021.  

On December 9, 2021, the panel affirmed the district court decision and denied the motion for a preliminary injunction. In addition, the panel ordered the stay it had put in place while adjudicating the case to dissolve in 14 days, providing Mr. Trump with that period of time to file a petition for a writ of certiorari with the Supreme Court and ask that Court to impose yet another stay pending resolution of the matter.

On December 23, 2021, Donald Trump filed an application with the Supreme Court to stay the National Archives from producing any documents to the House and to accept the case for review. On January 19, 2022, by an 8-1 majority, the Supreme Court denied Mr. Trump’s request to stay document production pending his appeal. The Supreme Court wrote that because the Court of Appeals had “concluded that President Trump’s claims would have failed even if he were the incumbent, his status as a former President necessarily made no difference to the court’s decision,” and deemed the part of the Court of Appeals opinion addressing his status as a former President unnecessary and “nonbinding” as a precedent. Justice Kavanaugh wrote a concurrence expressing his view that executive privilege can be asserted by a former as well as a sitting President.