The Court of Appeals Just Dealt Trump a Big Blow. But What Does It Really Mean, and What’s Next?

Photo: Alex Brandon / AP

In a 68-page, pointed opinion that highlighted the gravity and historic nature of the January 6 attack on the Capitol, a three-judge panel of the D.C. Court of Appeals affirmed the district court’s ruling against former president Trump, who had sought to halt the production of presidential records to the January 6 Committee from the National Archives. The Committee and its supporters cheered the news, but given the dense opinion, many in the larger public don’t yet fully grasp the scope of what’s at stake, why the ruling came down against Trump, what it means for other pending challenges, and what’s next for the case including how the Supreme Court could rule.

So let’s break this down.

What Evidence Is Actually At Stake in This Case?

The January 6 Committee subpoenaed presidential records from the National Archives (documents, communications, videos, photos) generated by the White House on January 6 relating to the rally at the Ellipse, the violence at the Capitol, and the activities of the administration that day. It also asked for White House calendars and schedules of meetings, visitor records, and call logs. Further, it wanted records from 2020 to 2021 relating to efforts to contest the results of the 2020 election, the security of the Capitol, the planning of marches and protests, what Trump received regarding election results and the public messaging around those results, and the transfer of power from Trump to Biden.

The Archives responded that it had located responsive documents and broke them down into three tranches to be produced. When the Biden White House, after careful consideration, waived executive privilege over these documents, Trump asserted the privilege nonetheless over around 788 pages of documents. These include, among other things, the following: 

• Talking points for the press secretary on voter fraud, election security, and the 2020 election

• Activity calendars

• Handwritten notes

• Draft text of a speech for the Save America March

• Draft executive order on election integrity

• Memo on a lawsuit regarding election issues

• Talking points on alleged election irregularities in Michigan

• Presidential findings on the security of the 2020 election ordering various actions

All of these documents might support or contain evidence of what increasingly looks like a criminal conspiracy within the White House to overturn the 2020 election. And unlike other communications and documents produced by cooperating witnesses, these presidential records might be unique and otherwise unobtainable without production by the National Archives. 

Why Trump Lost in This Appeal—in Layperson Terms

The opinion is policy and precedent heavy, but it’s not too hard to unpack. Reviewing how we got here: Trump had sued to prevent the Archives from producing these documents, asking for a preliminary injunction from a federal court to stop them from being turned over to the Committee. The district court denied that request, but the production of the documents was put on hold by the Court of Appeal pending its ruling. 

The appeals panel wound up weighing a key question: “whether, despite the exceptional circumstances underlying the Committee’s request and President Biden’s decision [to waive the privilege], a federal court can, at the former President’s behest, override President Biden’s decision not to invoke privilege and prevent his release to Congress of documents in his possession that he deems to be needed for a critical legislative inquiry.” 

A common misperception is that Trump doesn’t have the right to claim executive privilege at all because he’s no longer the president, end of story. But that’s too simple an analysis. Former presidents have at least some interest in being able to assert executive privilege, otherwise they couldn’t be assured that they could receive full candor from their advisors, who might worry that everything they say could become Exhibit 1 of the opposition party’s Congressional inquiry when the White House next changes hands and parties. Thus, when former presidents have requested executive privilege be extended over their presidential records, they have prevailed in some cases and lost in others, and the Court of Appeals walked through these carefully.

That said, it’s also true that the current occupant of the White House is “the principal holder and keeper of the privilege, and he speaks authoritatively for the interests of the Executive Branch.” As the court wrote, “Under our Constitution, we have one president at a time.” Quoting Nixon v. GSA, the panel held, “it must be presumed that the incumbent President is vitally concerned with and in the best position to assess the present and future needs of the Executive Branch, and to support the invocation of the privilege accordingly.”

Here, the Court of Appeals made a few key points among its lengthy discussion that ultimately led to its ruling. 

First, the judgment of the two political branches—executive and legislative—is unified as to these particular documents. In other words, it’s not like the Court was being asked to resolve a dispute between the two branches. Both actually want the documents produced. The Court simply isn’t very interested in inserting itself to disrupt an existing agreement between two co-equal branches of government.

Second, Trump had sued solely in his “official capacity” as the 45th president, so nothing in the production would harm any personal interest in privacy or confidentiality. He only argued it would burden the presidency generally. Biden disagreed, however, and because he is the sitting president, the Court found that he is in the best position to make that call. 

Third, Trump’s allegations of partisan motivations weren’t supported by any factual allegations (which is so very Trumpian) and in any event such alleged concerns don’t hold a candle to the need, asserted by both Congress and the White House, to investigate and legislate in response to the attack. The Court observed that future advisors are unlikely to temper the candor of their remarks because of the infrequent occasions on which events as serious as January 6 might happen.

Finally, it’s important to remember that Trump was asking for a preliminary injunction, which meant he had to show, among other things, that the interests of the office of the presidency would be “irreparably harmed” by the production of documents—something President Biden had carefully refuted by packaging the exception to executive privilege within the unique circumstances around January 6. Further delay, however, could result in harm to the Committee given the unique nature of the records at issue and the timeframe it has set to conclude its work. Finally, the Court acknowledged that the public has a strong interest in restoring confidence in the political process that outweighs any harm to the office of the presidency asserted by the former president.

Could the Ruling Affect Other Cases?

In a word, yes. If the Supreme Court passes on the case or even affirms it, then challenges based on claims of executive privilege by former President Trump where President Biden already has waived the privilege will lose their legal footing, probably entirely. Currently, former Trump advisor Steve Bannon is resting his defense against contempt of Congress charges on claims of executive privilege, and former White House Chief of Staff Mark Meadows has argued he has no choice but to resist the subpoena given Trump’s exercise of privilege. 

That exercise (and the civil case Meadows filed against the Committee and Speaker Nancy Pelosi) now looks very shaky following Wednesday’s ruling.  After all, if Trump doesn’t have the right to assert executive privilege over his own White House records, then it’s hard to see how records and information in the possession of third parties somehow have greater protection. The odds are now stacked heavily against successful claims of privilege by Bannon and Meadows.

But Won’t the Conservative Supreme Court Just Overturn This?

Anything is possible, but this is unlikely. This Court hasn’t shown Trump much love when it comes to preventing things like his tax records from being produced, and it shut him down over the election claims as well. The Court of Appeals wisely drew upon judicial deference to the agreement between the other branches of government as a basis for its decision because probably the last thing this Court wants to do is add more fuel to the argument that it is nothing but a political arm of the Republican Party. To undo the reasoning of the district court and the D.C. Court of Appeals would require some serious judicial gymnastics in which the justices likely have no motivation to engage.

The Court of Appeals gave Trump two weeks to file his emergency appeal before SCOTUS. It would not surprise me if a per curiam, “shadow docket” decision comes out later, unsigned, denying Trump review and leaving the appellate opinion in place as controlling law. After that, the Committee and ultimately the public will get to see just what it is Trump is working so hard to hide.