Hurry up and wait: Trump’s best legal shot at blocking the release of his January 6 docs

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According to court filings, Trump has less than a month to get a preliminary court order stopping the release of the records. The National Archives told Trump last week that it intended to return the documents on November 12 after President Joe Biden refused to claim executive privileges on him.

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Legal experts told Granthshala that Trump’s efforts to stall the release now could quickly turn into a bigger strategy to run the clock. With Democrats at risk of losing control of Congress in the midterms of next year, if Trump can drag the trial out long enough, it could be enough to reduce his request for documents, even as legal questions are ultimately about how. be resolved.

If Trump secures a provisional court order — a request he is likely to take to the Supreme Court if needed — blocking the November 12 release, the pace of proceedings could slow significantly. The legal basis the lawsuit is trying to explore is at least untenable and could prompt courts to deliberately review questions.


“In some ways, it actually works in President Trump’s favor, because there are so many questions that the courts have to address in the first place,” said Emily Berman, a professor at the University of Houston Law Center.

Why should he act quickly if Trump wants to iron things out?

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The case is somewhat similar to Trump vs Mazarhandjob The lawsuit that the then President brought against his accounting firm to prevent the release of his financial records to the House. While the Supreme Court rejected his most aggressive claims in that case, it struck a chord that has continued to stifle Congress’s efforts to obtain the documents.

It looks like Trump will take the trial again, if needed, to the Supreme Court, where he will be met by a conservative 6-3 majority. How soon the Supreme Court is put on the hot seat will depend on the handling of the case by the lower courts.

Unlike some of the other lawsuits that surrounded the Congressional investigation into Trump while he was president, the burden is now on Trump to obtain a court order to stop the release of the document — and to obtain one quickly.

“The posture of this particular suit makes it possible that it could move very quickly like the McGahn trial,” said Jonathan Schaub, a former attorney in the Justice Department’s Office of Legal Counsel and now an assistant professor at the University of Kentucky College. of law. In that case, the House was suing Trump to force White House counsel Don McGahn to appear for testimony. In this case, the archives have indicated that it plans to hand over the documents, so the onus is on Trump to obtain court intervention to stop it.

His first stop will be Obama-appointed Judge Tanya Chutkan, who was not involved in the previous administration’s major Trump oversight cases.

“He’s a very skilled judge and I doubt he’ll move on this very quickly,” Neil Eggleston, President Barack Obama’s former White House attorney, told Granthshala.

If she denies the initial injunction request, Trump will rely on the DC US Circuit Court of Appeals, where a three-judge panel will be held to review the case. While the D.C. circuit isn’t an entirely favorable territory for Trump, in the past he has made panel selections that have been skewed in his favor. After the appeals court panel weighs in, there are a few options for both sides if they want to keep the fight at the appeals level. The Supreme Court will be Trump’s next stop if he is unable to intervene immediately at the district or appellate level.

Read: Trump sues to block release of White House records

The Supreme Court’s request to block the November 12 release will first be filed on the court’s emergency docket – informally known as its shadow docket – though the high court will have several options as to how quickly or slowly. Would like to slowly take the next step in the matter.

If the Supreme Court wanted, it could have considered the matter expeditiously on merits and passed a decision to settle the matter within a few months. A tentative order halting the release in the coming weeks – assuming the lower court does not – will give a preview of how seriously the Supreme Court is taking the claims.

“I think we’ll know right away what the Supreme Court majority thinks,” said Greg Lipper, a constitutional and criminal attorney in Washington, DC.

“It’s a situation where you don’t know you can’t ring the bell, obviously,” Lipper said, referring to the upcoming deadline. “So, if they are sympathetic to Trump’s claims, they will likely order a release.”

What kind of swing room does Trump have to pursue his legal case?

Trump is making two major claims in the lawsuit: one, Congress’ request for the documents is invalid because it allegedly lacks legislative purpose and second, that as a former president, he enjoys executive privileges even as the current president. The claim should be allowed. has refused to do.

The first legal claim rests significantly on the Mazar case, though the judiciary will consider those questions under very different circumstances than previously during the House’s search for Trump’s tax returns. As for the latter question, regarding Trump’s ability to claim executive privilege while out of office, the legal field is not well trodden. Even if Trump is destined to lose, the open nature of the issue may entice the Supreme Court to get involved and hear the case in its entirety.

The most relevant case of the Supreme Court on the question of executive privilege is Nixon vs. General Services Administration, where the Supreme Court was resolving a dispute brought by former President Richard Nixon over whether the GSA could obtain its presidential records under the newly enacted Presidential Records Act.

The Supreme Court rejected Nixon’s claim that the law was unconstitutional, saying that an incumbent president was “in the best position to assess the current and future needs of the executive branch and accordingly support the invocation of the privilege.”

Even legal experts who are largely skeptical of Trump’s arguments acknowledge that there is little room for the courts to consider the decision. The Supreme Court’s opinion stated that the former president “can also be heard to assert claims of privilege”.

“There is an identity [that] There is interest in the former president, but how significant the interest is has not been explored,” said Schaub, a former DOJ attorney.

It is possible that courts may decide that there are certain circumstances where judges must consider former presidents’ claims of privilege, but still rule against Trump in this particular case. Trump is also arguing that Congress’ request for his record was denied because the kind of investigation the House Select Committee is conducting is outside the legislative authority established by the Constitution.

According to Eggleston, a former Obama White House attorney, there are plenty of examples of possible laws coming out of the investigation that the House committee could point to in the case.

The House can also argue that “we have the power to investigate an armed attack against our institution,” Eggleston said. “I don’t see a court saying, ‘Oh no, you just have to sit on your hands. … You have to leave it to another branch of government.’ I think it will be a laughable answer from the court.”


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