WASHINGTON — Former President Donald J. Trump asked a federal appeals court on Tuesday to block the National Archives from giving Congress quick access to records from his White House related to the Jan. 6 riot at the Capitol, arguing that litigation over whether they are properly shielded by his claim of executive privilege should fully play out first.
In a 54-page brief filed before the Court of Appeals for the District of Columbia Circuit, Jesse R. Binnall, a lawyer for Mr. Trump, reiterated his argument that the Constitution gives the former president the power to keep those files confidential even though he is no longer in office — and even though President Biden refused to assert executive privilege over them.
“The stakes in this case are high,” Mr. Binnall wrote, adding that a decision to uphold Congress’s subpoena over Mr. Trump’s objections would set a precedent that would shift the balance between the legislative and executive branches.
“It is naïve to assume that the fallout will be limited to President Trump or the events of Jan. 6, 2021,” he wrote. “Every Congress will point to some unprecedented thing about ‘this president’ to justify a request for his presidential records. In these hyperpartisan times, Congress will increasingly and inevitably use this new weapon to perpetually harass its political rival.”
The dispute raises novel issues about the scope of executive privilege when invoked by a former president without the support of the incumbent one. It centers on a subpoena issued by the House committee investigating the Jan. 6 attack on the Capitol by Trump supporters seeking to block Congress from certifying Mr. Biden’s election win.
The committee is seeking White House documents that would show Mr. Trump’s movements, meetings, and communications before and during the day of the riot. Jan. 6 began with a rally convened by Mr. Trump at which he repeated his baseless assertion that the election was stolen from him while encouraging his supporters to “fight like hell” and to walk down to the Capitol.
After Mr. Biden, through his White House counsel, told the head of the National Archives that he believed it was in the public interest for the Jan. 6 committee to obtain the White House files and so would not invoke executive privilege over them, Mr. Trump filed a lawsuit, seeking an injunction blocking the agency from giving the records to Congress.
Last week, a Federal District Court judge, Tanya Chutkan, sided with Congress and the Biden administration. She ruled that while Mr. Trump could invoke executive privilege, whatever residual secrecy powers he possesses were outweighed in these circumstances by the constitutional investigative authority of Congress backed by Mr. Biden.
Mr. Trump “does not acknowledge the deference owed to the incumbent president’s judgment. His position that he may override the express will of the executive branch appears to be premised on the notion that his executive power ‘exists in perpetuity,’” Judge Chutkan wrote. “But presidents are not kings, and plaintiff is not president.”
The National Archives had been scheduled to provide a first batch of documents to Congress last Friday. (It has been identifying additional batches on a rolling basis.) Judge Chutkan declined to block the transfer of the documents from proceeding while Mr. Trump appealed her ruling, but the D.C. Circuit appeals panel issued a short-term block to freeze matters in place for now.
The chairman of the Jan. 6 committee, Representative Bennie Thompson, Democrat of Mississippi, has said he wants to finish its work by late spring, raising the question of whether the litigation will thwart the panel from obtaining access to the records before it completes any final report.
In his brief, Mr. Binnall wrote that it was important that the legal issues be definitively resolved before Congress gains access to any of the disputed records, suggesting it would do his client little good if he ultimately wins the case but the House has already seen the confidential files.
Understand the Claim of Executive Privilege in the Jan. 6. Inquiry
A key issue yet untested. Donald Trump’s power as former president to keep information from his White House secret has become a central issue in the House’s investigation of the Jan. 6 Capitol riot. Amid an attempt by Mr. Trump to keep personal records secret and the indictment of Stephen K. Bannon for contempt of Congress, here’s a breakdown of executive privilege:
What is executive privilege? It is a power claimed by presidents under the Constitution to prevent the other two branches of government from gaining access to certain internal executive branch information, especially confidential communications involving the president or among his top aides.
What is Trump’s claim? Former President Trump has filed a lawsuit seeking to block the disclosure of White House files related to his actions and communications surrounding the Jan. 6 Capitol riot. He argues that these matters must remain a secret as a matter of executive privilege.
Is Trump’s privilege claim valid? The constitutional line between a president’s secrecy powers and Congress’s investigative authority is hazy. Though a judge rejected Mr. Trump’s bid to keep his papers secret, it is likely that the case will ultimately be resolved by the Supreme Court.
Is executive privilege an absolute power? No. Even a legitimate claim of executive privilege may not always prevail in court. During the Watergate scandal in 1974, the Supreme Court upheld an order requiring President Richard M. Nixon to turn over his Oval Office tapes.
May ex-presidents invoke executive privilege? Yes, but courts may view their claims with less deference than those of current presidents. In 1977, the Supreme Court said Nixon could make a claim of executive privilege even though he was out of office, though the court ultimately ruled against him in the case.
Is Steve Bannon covered by executive privilege? This is unclear. Mr. Bannon’s case could raise the novel legal question of whether or how far a claim of executive privilege may extend to communications between a president and an informal adviser outside of the government.
What is contempt of Congress? It is a sanction imposed on people who defy congressional subpoenas. Congress can refer contempt citations to the Justice Department and ask for criminal charges. Mr. Bannon has been indicted on contempt charges for refusing to comply with a subpoena that seeks documents and testimony.
“The limited interest the committee may have in immediately obtaining the requested records pales in comparison to President Trump’s interest in securing judicial review before he suffers irreparable harm,” Mr. Binnall wrote.
Both in office and out, amid frequent disputes with Congress over access to government information for oversight investigations, Mr. Trump has pursued a strategy of stonewalling, rather than negotiating a compromise, and using the generally slow pace of litigation to run out the clock.
Against that backdrop, the appeals court panel has scheduled arguments for Nov. 30 on the preliminary question of whether to continue to block the National Archives from turning over any papers to Congress while it considers the legal merits of Mr. Trump’s executive privilege claim. Should it drop that block, Mr. Trump would most likely appeal to the Supreme Court.
To date, all the judges randomly assigned to hear the matter have been liberal-leaning Democratic appointees. Judge Chutkan was appointed by President Barack Obama, as were two judges on the appeals court panel: Patricia A. Millett and Robert L. Wilkins. The third appellate judge, Ketanji Brown Jackson, was appointed by Mr. Biden.
But if the case reaches the Supreme Court, the atmosphere may be different. Six of the nine justices are conservative-leaning Republican appointees, including three whom Mr. Trump named to the bench.