A federal appeals court has agreed to temporarily halt delivery of presidential records to a House committee probing the Jan. 6 attack on the Capitol, handing former President Donald Trump his first win after a series of legal losses at a lower court.
The U.S. Court of Appeals for the D.C. Circuit said Thursday that it would grant the delay, giving its judges more time to review the case. The appeals court will hold oral arguments on Nov. 30, and the case could eventually be appealed further to the Supreme Court.
The National Archives was due to deliver a first tranche of documents to the Democratic-led House panel on Friday at 6 p.m. ET.
With the clock winding down, the decision to halt was in some ways expected, legal experts said.
“Just for the D.C. Circuit to figure out that there’s no grounds for a stay, these kinds of very, very short administrative stays are not unusual,” said Norm Eisen, a former House impeachment lawyer who is closely following the case.
Also, the defendants in the case — the House select committee and the National Archives — took no position on an emergency filing by Trump’s legal team asking for the temporary reprieve.
Trump’s legal team had filed the request with the appellate court Thursday morning to stop the transfer of the first wave of documents, arguing that a release before oral arguments would destroy the confidentiality of the records prematurely.
Trump “has the right to be heard and to seek judicial intervention should a disagreement between the incumbent and former Presidents arise regarding congressional requests and executive privilege,” his lawyers said in a filing.
“Winning is simply delaying”
Even with the appellate court setting an expedited schedule for the case, it’s possible that any release of Trump White House records may not happen until next year at the earliest, said Jonathan Shaub, a former attorney at the Justice Department’s Office of Legal Counsel who now teaches law at the University of Kentucky.
Shaub said it’s possible that even after a smaller panel for the appellate court rules, Trump’s legal team could ask for the full U.S. Court of Appeals for the D.C. Circuit to hear the case. And from there, the case could then move to the Supreme Court.
The delays may be part of Trump’s legal strategy to run out the clock on the committee’s plans to wrap up by the end of next year, Shaub said. If Republicans take control of the House in 2023, it’s likely the panel will be dissolved that year and could hand Trump the ultimate win, Shaub said.
“For him, winning is simply delaying,” Shaub said. “And his challenge is to delay long enough, given the weakness of his arguments.”
Thursday’s appellate court decision came after U.S. District Judge Tanya Chutkan this week rejected Trump’s claims to stop hundreds of pages from being released to the House committee.
Trump’s legal team quickly appealed, sending the case to the appellate court.
Meadows signals he won’t comply with probe
The case is being closely watched, including by some witnesses recently subpoenaed by the House panel.
Trump had signaled to several former advisers and allies that executive privilege could also shield them from cooperating with the investigation.
Of the 35 subpoenas issued so far, only one witness, former Justice Department official Jeffrey Clark, has appeared before the panel — but to assert privilege prevented him from answering questions.
And on Thursday, a lawyer for another subpoenaed witness, ex-White House Chief of Staff Mark Meadows, said he won’t be able to comply, for now.
“Contrary to decades of consistent bipartisan opinions from the Justice Department that senior aides cannot be compelled by Congress to give testimony, this is the first President to make no effort whatsoever to protect presidential communications from being the subject of compelled testimony,” said attorney George Terwilliger. “Mr. Meadows remains under the instructions of former President Trump to respect longstanding principles of executive privilege. It now appears the courts will have to resolve this conflict.”
The chair of the panel, Rep. Bennie Thompson, D-Miss., wrote to Terwilliger Thursday that “there is no valid legal basis for Mr. Meadows’s continued resistance to the Select Committee’s subpoena,” and said that if he doesn’t show up for a deposition by Friday, the panel could move to a contempt referral.