Case 1:21-cv-02769 Document 1 Filed 10/18/21 Page 1 of 26

IN THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF COLUMBIA

DONALD J. TRUMP, in his capacity as

the 45th President of the United States,
The Mar-A-Lago Club
1100 S. Ocean Blvd.
Palm Beach, FL 33480,

Plaintiff, Civil Action No. 21-2769

v.

BENNIE G. THOMPSON, in his official

capacity as Chairman of the United States
House Select Committee to Investigate
the January 6th Attack on the United
States Capitol,
2466 Rayburn House Office Building
U.S. House of Representatives
Washington, D.C. 20515,

THE UNITED STATES HOUSE SELECT

COMMITTEE TO INVESTIGATE THE
JANUARY 6TH ATTACK ON THE
UNITED STATES CAPITOL,
U.S. House of Representatives
Washington, D.C. 20515,

DAVID S. FERRIERO, in his official

capacity as Archivist of the United States,
National Archives and Records
Administration
700 Pennsylvania Avenue, NW
Washington, D.C. 20408, and

THE NATIONAL ARCHIVES

AND RECORDS ADMINISTRATION,
700 Pennsylvania Avenue, NW
Washington, D.C. 20408,

Defendants.
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COMPLAINT

1. Plaintiff President Donald J. Trump brings this civil action seeking

declaratory and injunctive relief under the Presidential Records Act, 44 U.S.C.

§§ 2201–2209 (“PRA”), 36 C.F.R. § 1270.44(f)(3), the Declaratory Judgment Act, 28

U.S.C. § 2201, Executive Order No. 13489, and the Constitution of the United States.

INTRODUCTION

2. The United States House Select Committee to Investigate the January

6th Attack on the United States Capitol (the “Committee”) has decided to harass

President Trump and senior members of his administration (among others) by

sending an illegal, unfounded, and overbroad records request to the Archivist of the

United States. This self-described “sweeping”1 request is almost limitless in scope

and effectively seeks every presidential record and communication that could

tenuously relate to events that occurred on January 6, 2021. The request also seeks

records with no reasonable connection to the events of that day. In a political ploy to

accommodate his partisan allies, President Biden has refused to assert executive

privilege over numerous clearly privileged documents requested by the Committee.

The Committee’s request amounts to nothing less than a vexatious, illegal fishing

expedition openly endorsed by Biden and designed to unconstitutionally investigate

1
See Select Committee Issues Sweeping Demand for Executive Branch Records,
United States House Select Committee to Investigate the January 6th Attack on the
United States Capitol (Aug. 25, 2021), https://january6th.house.gov/news/press-
releases/select-committee-issues-sweeping-demand-executive-branch-records.

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President Trump and his administration. Our laws do not permit such an impulsive,

egregious action against a former President and his close advisors.

3. On August 25, 2021, the Committee sent sweeping requests for

documents and records to the Archivist of the United States seeking information from

the Executive Office of the President (“EOP”) and the Office of the Vice President

(“OVP”). See Letter from Bennie G. Thompson to David S. Ferriero (Aug. 25, 2021)

(attached hereto as Exhibit 1). These requests were signed by Chairman of the

Committee Bennie G. Thompson. Among many other items, these requests reiterated

the requests made in the March 25, 2021, correspondence from multiple committees

of the House of Representatives to the White House and the Archivist. See Letter

from Congressional Committees to Ron Klain and David S. Ferriero (Mar. 25, 2021)

(attached hereto as Exhibit 2).

4. The Committee’s requests are unprecedented in their breadth and scope

and are untethered from any legitimate legislative purpose.

5. The Committee’s boundless requests included over fifty individual

requests for documents and information, and mentioned more than thirty

individuals, including those working inside and outside government during the

unreasonably overbroad time period covered by the request. Aside from being overly

broad and seeking records protected by numerous legal privileges, these requests are

also unduly burdensome because of the substantial time required to conduct an

adequate review of the voluminous records sought by the Committee.

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6. For example, among the myriad other documents requested, the

Committee has asked for:

[a]ll documents and communications relating in any way to remarks

made by Donald Trump or any other persons on January 6, including
Donald Trump’s and other speakers’ public remarks at the rally on the
morning of January 6, and Donald Trump’s Twitter messages
throughout the day.

Similarly, and even more invasive, the Committee requested, “[f]rom November 3,

2020, through January 20, 2021, all documents and communications related to

prepared public remarks and actual public remarks of Donald Trump.” Issued public

statements are one thing, but the notion that Congress is somehow entitled to ask for

and review any and all private conversations, remarks, or drafts of public statements

considered by the President of the United States and his close advisors, without

limitations on (among other things) subject matter, would destroy the very fabric of

our constitutional separation of powers and invade fundamental privileges designed

to maintain the autonomy and functioning of the Executive Branch. See Trump v.

Mazars USA, LLP, 140 S.Ct. 2019, 2032 (2020) (“[Executive] privilege safeguards the

public interest in candid, confidential deliberations within the Executive Branch; it

is ‘fundamental to the operation of Government.’”) (quoting United States v. Nixon,

418 U.S. 683, 708 (1974)).

7. The Committee has also asked for “[a]ll documents and communications

within the White House on January 6, 2021 relating in any way to,” among others,

the President, the Vice President, over two dozen of the highest-ranking officials in

the Federal government (including the National Security Advisor and his Deputy,

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and the White House Counsel and his Deputy), any Member of Congress or

congressional staff, or the Department of Defense, the Department of Justice, the

Department of Homeland Security, the Department of the Interior, or any element of

the National Guard. This single request demands access to any number of records to

which the Committee is in no way entitled. Such records have nothing to do with the

events of January 6th, the scope of the Committee’s authority as defined in H.R. 503,

or any conceivable legislative purpose, and many of the records are clearly protected

by executive privilege and other privileges. See H.R. 503, 117th Cong. (2021)

(attached hereto as Exhibit 3). Those records seek documents and communications

that could include, but are not limited to, conversations with (or about) foreign

leaders, attorney work product, the most sensitive of national security secrets, along

with any and all privileged communications among a pool of potentially hundreds of

people.

8. The Committee’s request also asks for “[a]ll schedules for any

individuals identified . . . above on January 6, 2021, and all documents relating to

such meetings, including memoranda, read-aheads, and summaries of such

meetings.” Again, the idea that the Committee should be free to review any and all

materials related to any and all presidential communications, deliberative-process

conversations or documents, or meetings involving national security and foreign

affairs, the vast majority of which do not relate to the Committee’s charter, makes a

mockery of our tri-partite government of checks and balances.

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9. The Committee further seeks access to other vast swaths of information,

including all documents and communications related to the 2020 election, from April

1, 2020, through January 20, 2021, among the President, his private counsel, his

Chief of Staff, his Campaign Managers, other senior campaign officials, and over forty

other advisors. Such requests have no reasonable connection to the Committee’s

charter or to any legitimate legislative purpose.

10. The Committee also requested information about personnel changes in

the Departments of Defense and Justice, the FBI, the CIA, and the Department of

Homeland Security, despite the fact that any and all members of these departments

and agencies serve at the pleasure of the President, and any personnel changes in

these Departments are at the sole discretion of the Executive and his designees.

11. Plaintiff first challenges as contrary to law the Committee’s self-

assumed authority to ignore the constitutional limits on Congress’s power to

investigate. Article I of the Constitution does not contain an “Investigations Clause”

or an “Oversight Clause.” It gives Congress the power to enact certain legislation.

Accordingly, investigations are permissible only insofar as they further some

legitimate legislative purpose. As the Supreme Court recognized in shooting down

another congressional fishing expedition directed at President Trump’s records, such

legitimate legislative purposes do not include “law enforcement” powers “assigned

under our Constitution to the Executive and the Judiciary,” inquiry into private

affairs, or “to expose for the sake of exposure.” Mazars, 140 S.Ct. at 2032. Although

congressional investigations are due significant deference from the courts, McGrain

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v. Daugherty, 273 U.S. 135, 178 (1927), that deference has limits. In Watkins v.

United States, 354 U.S. 178 (1957), the Supreme Court held that, while “[t]he public

is of course entitled to be informed concerning the workings of government, [t]hat

cannot be inflated into a general power to expose.” Id. at 200. Similarly, this Court

later held that if a congressional subpoena “is issued solely for sake of exposure or

intimidation, then it exceeds the legislative function of Congress.” Hentoff v. Ichord,

318 F. Supp. 1175, 1182 (D.D.C. 1970). Inquiries, like the one Congress is engaged in

here, conducted “for the personal aggrandizement of the investigators or to punish

those investigated are indefensible.” Mazars, 140 S.Ct. at 2032.

12. No investigation can be an end in itself; there is nothing in the

overwhelming majority of the records sought that could reasonably be justified as a

means of facilitating the legislative task of enacting, amending, or repealing laws.

The “informing function” that Congress possesses under Article I “is that of informing

itself about subjects susceptible to legislation, not that of informing the public.” Miller

v. Transamerican Press, Inc., 709 F.2d 524, 531 (9th Cir. 1983) (citing Hutchinson v.

Proxmire, 443 U.S. 111, 132-33 (1979)).

13. Nevertheless, the Committee has requested an extremely broad set of

potentially millions of presidential records, which assuredly include information

within the scope of various components of executive privilege, including but not

limited to the presidential-communications, deliberative-process, attorney-client, and

attorney-work-product privileges, and which include law enforcement information,

national security information, and information relating to sensitive intelligence

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sources and methods. Condoning such requests would allow Congress to “exert an

imperious controul over the Executive Branch and aggrandize itself at the President’s

expense, just as the Framers feared.” Mazars, 140 S. Ct. at 2034.

14. Ultimately, the Committee is attempting to damage the republic itself,

and the citizens of the United States, for executive privilege “safeguards the public

interest in candid, confidential deliberations within the Executive Branch; it is

‘fundamental to the operation of Government.’” Id. at 2032 (quoting Nixon, 418 U.S.

at 708). Courts have “recognized a ‘great public interest’ in preserving ‘the

confidentiality of conversations that take place in the President’s performance of his

official duties’ because such confidentiality is needed to protect ‘the effectiveness of

the executive decision-making process.’” In re Sealed Case (Espy), 121 F.3d 729, 742

(D.C. Cir. 1997). For this reason, presidential conversations “are presumptively

privileged.” Nixon v. Sirica, 487 F.2d 700, 716 (D.C. Cir. 1973)). Because the

Committee’s requests seek to expose confidential and privileged information while

lacking “a legitimate legislative purpose,” this Court has the power to declare the

requests invalid and to enjoin their enforcement. Plaintiff is entitled to that relief.

15. On September 24, 2021, during the pendency of good-faith discussions

between Plaintiff’s counsel and the Biden Administration concerning the potential

for reasonable accommodations to the Committee, the Biden White House made

public statements that it would not object to the production of certain records created

during the Trump Administration that are unquestionably subject to constitutionally

protected privileges. See The White House, Press Briefing by Press Secretary Jen

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Psaki and Secretary of Homeland Security Alejandro Mayorkas, Sept. 24, 2021,

https://www.whitehouse.gov/briefing-room/press-briefings/2021/09/24/press-briefing-

by-press-secretary-jen-psaki-and-secretary-of-homeland-security-alejandro-

mayorkas-september-24-2021/. On October 8, 2021, the Biden White House notified

the Archivist that it would not be asserting executive privilege over certain

documents identified as responsive to the Committee’s request. See Letter from Dana

A. Remus to David S. Ferriero (Oct. 8, 2021) (attached hereto as Exhibit 4). That same

day, pursuant to the PRA, associated regulations, and Executive Order No. 13489

(the “Executive Order”), President Trump notified the Archivist that he has made a

formal assertion of executive privilege with respect to a limited number of documents

as well as a protective assertion of executive privilege over any additional materials

that may be requested by the Committee. See Letter from President Donald J. Trump

to the Archivist of the United States (Oct. 8, 2021) (attached hereto as Exhibit 5).

Then, the Biden White House notified the Archivist the same day that it would not

assert executive privilege over the documents identified in President Trump’s

October 8 letter and instructed the Archivist to provide the privileged documents to

the Committee “absent any intervening court order” thirty days after notifying

President Trump. See Letter from Dana A. Remus to David S. Ferriero (Oct. 8, 2021)

(attached hereto as Exhibit 6).

16. On October 13, 2021, the Archivist notified President Trump that,

“[a]fter consultation with Counsel to the President and the Acting Assistant Attorney

General for the Office of Legal Counsel, and as instructed by President Biden” the

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Archivist has “determined to disclose to the Select Committee” all responsive records

that President Trump determined were subject to executive privilege on November

12, 2021 “absent any intervening court order.” See Letter from David S. Ferriero to

Donald J. Trump (Oct 13, 2021) (attached hereto as Exhibit 7).

17. Notably, the Biden Administration’s waiver of executive privilege is a

myopic, political maneuver designed to maintain the support of its political rivals and

is not based on any discernable legal principle. In fact, the Biden administration’s

unprincipled political accommodation is directly contrary to long-standing Supreme

Court precedent that “information subject to executive privilege deserves ‘the

greatest protection consistent with the fair administration of justice.’” Mazars, 140 S.

Ct. at 2024 (quoting Nixon, 418 U.S. at 715). Nevertheless, this waiver is irrelevant

insofar as the Committee’s request serves no valid legislative purpose and is thus

unconstitutional.

18. As it relates to any materials being sought in situations like this, where

fundamental privileges and constitutional issues are at stake and where a committee

has declined to grant sufficient time to conduct a full review, there is a longstanding

bipartisan tradition of protective assertions of executive privilege designed to ensure

the ability to make a final assertion, if necessary, over some or all of the requested

material. See Protective Assertion of Executive Privilege Regarding White House

Counsel’s Office Documents, 20 Op. O.L.C. 1 (1996) (opinion of Attorney General

Janet Reno). In the event this Court does not declare the requests invalid and

unconstitutional, this protective assertion will ensure President Trump’s ability to

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decide whether to make any further conclusive assertions of privilege following a full

review of all of the requested materials. See Letter from William P. Barr, Attorney

General, to President Donald J. Trump, at 1-2 (May 8, 2019) (attached hereto as

Exhibit 8).

19. In sum, Plaintiff files this action requesting that the Court invalidate

the Committee’s requests and enjoin the Archivist from turning over the records in

question. At a bare minimum, the Court should enjoin the Archivist from producing

any potentially privileged records until President Trump is able to conduct a full

privilege review of all of the requested materials.

PARTIES

20. Plaintiff Donald J. Trump is the 45th President of the United States.

President Trump brings this suit solely in his official capacity as a former President

under the PRA, associated regulations, the Executive Order, the Declaratory

Judgment Act, and the Constitution of the United States.

21. Defendant Bennie G. Thompson is the Chairman of the United States

House Select Committee to Investigate the January 6th Attack on the United States

Capitol. He is sued in his official capacity.

22. Defendant United States House Select Committee to Investigate the

January 6th Attack on the United States Capitol is a select committee of the United

States House of Representatives. After the 2020 election, the Democratic Party

controlled Congress and created the Committee pursuant to House Resolution 503 to

investigate and report upon the facts, circumstances, and causes relating to the

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events of January 6, 2021, at the United States Capitol. The Committee is sued in its

official capacity.

23. Defendant David S. Ferriero is the Archivist of the United States. He is

sued in his official capacity.

24. Defendant National Archives and Records Administration is the federal

government agency that stores documents and materials created in the course of

business conducted by the United States federal government.

JURISDICTION AND VENUE

25. This Court has subject-matter jurisdiction because this case arises

under the Constitution and laws of the United States. 28 U.S.C. § 1331. This Court

has jurisdiction to grant both declaratory and injunctive relief under 28 U.S.C.

§§ 2201 and 2202. This Court also has jurisdiction pursuant to 44 U.S.C. § 2204(e)

and 28 U.S.C. § 2201(a).

26. Venue is proper in this Court pursuant to 28 U.S.C. § 1391(b) because a

substantial part of the events or omissions giving rise to Plaintiff’s claim have

occurred, and are occurring, in this District. Venue is also proper pursuant to 44

U.S.C. § 2204(e).

FACTUAL BACKGROUND

27. After the 2020 election, the Democrats in Congress created the

Committee pursuant to House Resolution 503 in a misguided attempt to intimidate

and harass President Trump and his supporters under the guise of investigating the

events of January 6, 2021. House Resolution 503 provides the Committee with the

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power to investigate the activities of intelligence agencies, law enforcement agencies,

and the Armed Forces surrounding January 6th, and provides that the Committee

will issue a final report on its activities. See Exh. 3. Notably, this resolution never

discusses the EOP nor does the Committee’s charter permit an investigation into the

Executive Office of the President’s deliberations and response to the events that

occurred on January 6th. Id.

28. It would make no sense for the Committee’s charter to encompass such

an investigation. As has been widely reported, the FBI has not found evidence

supporting the Democrats’ contention that the events at the Capitol on January 6

were part of some organized plot to overturn the results of the 2020 election.2

Likewise, as has been reported, the FBI has “so far found no evidence” that former

President Donald Trump or “people directly around him were involved in organizing

the violence.” Id. If anything, the FBI has found that a small group of individuals

planned to breach the Capitol prior to January 6. A subsequent joint report by the

Senate Homeland Security and Rules Committees blamed “intelligence and security

failures,” not the President or any of his advisers, for what happened at the Capitol

that day.3 And Congress has already conducted a thorough investigation of this entire

matter during its failed impeachment effort.

2 Mark Hosenball and Sarah N. Lynch, Exclusive: FBI finds scant evidence U.S.
Capitol attack was coordinated – sources, Reuters (Aug. 20, 2021, 10:43 PM),
https://www.reuters.com/world/us/exclusive-fbi-finds-scant-evidence-us-capitol-
attack-was-coordinated-sources-2021-08-20/.
3
Staff of S. Comm. On Homeland Security and Governmental Affairs and S.
Committee on Rules and Administration, 117th Cong., Examining the U.S. Capitol
Attack: A review of the Security, Planning, and Response Failures on January 6,

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29. The Committee’s ultra vires request purports to be made “pursuant to

the Presidential Records Act (44 U.S.C. § 2205(2)(C)),” see Exh. 1. The Presidential

Records Act (“PRA”) of 1978, 44 U.S.C. §§ 2201-2209, governs the official records of

Presidents and Vice Presidents. The Archivist and the National Archives and Records

Administration (“NARA”) are charged with working with the President to administer

and store presidential records after the President leaves office. See generally 44

U.S.C. §§ 2202-2208.

30. The PRA defines “presidential records” as follows:

documentary materials, or any reasonably segregable portion thereof,

created or received by the President, the President’s immediate staff, or
a unit or individual of the Executive Office of the President whose
function is to advise or assist the President, in the course of conducting
activities which relate to or have an effect upon the carrying out of the
constitutional, statutory, or other official or ceremonial duties of the
President.

44 U.S.C. § 2202. Prior to the end of his term of office, President Trump specified that

access to his presidential records would remain restricted for a period of twelve years,

as permitted by law. 44 U.S.C. § 2204.

31. Section 2205(2)(C), the portion of the PRA cited by the Committee in

issuing its records request to the Archivist, provides one of three exceptions to the

PRA’s access restrictions. It provides that “Presidential records shall be made

https://www.rules.senate.gov/imo/media/doc/Jan%206%20HSGAC%20Rules%20Rep
ort.pdf (last visited Oct. 18, 2021). It is indisputable that during the President’s
speech at the Ellipse on January 6 the President stated that his supporters should
“peacefully and patriotically make [their] voices heard.” Nonetheless Committee
members have claimed that the President’s speech is what incited the violence on
January 6th.

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available . . . (C) to either House of Congress, or, to the extent of matter within its

jurisdiction, to any committee or subcommittee thereof if such records contain

information that is needed for the conduct of its business and that is not otherwise

available.” 44 U.S.C. § 2205(2)(C). Importantly, while Congress has purportedly

arrogated to itself the power to request documents in certain instances under the

statute, all congressional requests must still comply with the United States

Constitution, the separation of powers principles contained in that governing

document, and have “valid legislative purpose.”

32. The PRA gives the Archivist the power to promulgate regulations to

administer the statute. 44 U.S.C. § 2206. Pursuant to those regulations, the Archivist

must promptly notify the President of a records request for records made during his

term of office as well as the incumbent President. 36 C.F.R. § 1270.44. Once the

Archivist notifies the former and incumbent Presidents of the Archivist’s intent to

disclose records, either President may assert a claim of constitutionally based

privilege against disclosing the record within thirty calendar days after the date of

the Archivist’s notice. Id. The incumbent or former President must personally make

any decision to assert a claim of constitutionally based privilege against disclosing a

Presidential record or a reasonably segregable portion of it. Id.

33. If a former President asserts the privilege claim, the Archivist consults

with the incumbent President, as soon as practicable and within thirty calendar days

from the date that the Archivist receives notice of the claim, to determine whether

the incumbent President will uphold the claim. Id. If the incumbent President

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upholds the claim asserted by the former President, the Archivist does not disclose

the presidential record unless the incumbent withdraws his decision or a court directs

the Archivist to disclose the record. Id. If the incumbent President does not uphold

the claim asserted by the former President, the Archivist discloses the Presidential

record sixty calendar days after the Archivist received notification of the claim unless

a court order in an action in any federal court directs the Archivist to withhold the

record. Id. Finally, the Executive Order provides that the Archivist shall notify the

incumbent and former Presidents of his determination to release certain records at

least thirty days prior to disclosure of the records, unless a shorter time-period is

required in the circumstances set forth in section 1270.44 of the NARA regulations.

Exec. Order No. 13489.

34. Pursuant to this regulatory and statutory framework, the Archivist

notified President Trump on August 30, 2021, that he intended to produce certain

documents in response to the Committee’s expansive request. On October 8, 2021, the

Biden White House notified the Archivist that it would not be asserting executive

privilege over certain documents identified as responsive to the Committee’s request.

See Exh. 4. That same day, pursuant to the PRA, associated regulations, and the

Executive Order, President Trump notified the Archivist that he has made a formal

assertion of executive privilege with respect to a small subset of documents as well

as a protective assertion of executive privilege over any additional materials that may

be requested by the Committee. See Exh. 5. Then, the Biden White House notified

the Archivist the same day that it would not assert executive privilege over the

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documents identified in President Trump’s October 8 letter and instructed the

Archivist to turn the records over to the Committee thirty days from the date of

notifying President Trump of Biden’s decision, subject to a determination by this

Court pursuant to 44 U.S.C. § 2204(e). See Exh. 6. On October 13, 2021, the Archivist

notified President Trump that, “[a]fter consultation with Counsel to the President

and the Acting Assistant Attorney General for the Office of Legal Counsel, and as

instructed by President Biden” the Archivist has “determined to disclose to the Select

Committee” all responsive records that President Trump determined were subject to

executive privilege on November 12, 2021, “absent any intervening court order.” See

Exh. 7.

35. Plaintiff has identified numerous, insurmountable challenges with the

process of reviewing presidential records supplied to him by the Archivist. Often,

documents are not unitized and are provided out of sequence. This results in the

reviewer being unable to determine whether certain documents are part of a single

record or are otherwise unrelated and could lead to substantial confusion by members

of the Committee and its staff and inadvertent production of non-responsive records.

Similarly, the identified custodian and/or author of certain records may be materially

different from the actual author or custodian of the record. Given the short time

periods for review under the PRA, it is unlikely that Plaintiff and his staff will be able

to ensure that the records being produced to the Committee are what they purport to

be. This could lead to inadvertent disclosure of records subject to privileges for which

the document was not reviewed. Therefore, unless there is an opportunity for a

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complete review of all records determined to be responsive by NARA, Plaintiff will

suffer additional irreparable harm.

36. The current President’s decision to waive executive privilege for his own

political benefit will undoubtedly cause sustainable injury and irreparable harm to

future presidential administrations.

37. President Trump now commences this lawsuit seeking to enjoin the

Committee’s records request and prevent the Defendants from enforcing or complying

with the request with respect to the privileged documents and any additional

documents the Archivist seeks to turn over to the Committee.

LEGAL BACKGROUND AND CLAIM FOR

JUDICIAL DETERMINATION AND DECLARATORY JUDGMENT

38. Most fundamentally, the Committee’s request lacks a valid legislative

purpose and thus violates the Constitution and separation of powers. The Supreme

Court in Mazars set forth a four-part, non-exclusive balancing test to analyze the

constitutional propriety of congressional requests directed to presidential records.

Satisfaction of the Mazars standard is a threshold issue that the Committee cannot

overcome. First, the Supreme Court cautions courts to “carefully assess whether the

asserted legislative purpose warrants the significant step of involving the President

and his papers.” Mazars, 140 S.Ct. at 2035-36. Further, the Court noted that

“Congress may not rely on the President’s information if other sources could

reasonably provide Congress the information it needs in light of its particular

legislative objective. The President’s unique constitutional position means that

Congress may not look to him as a ‘case study’ for general legislation.” Id.

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Importantly, 44 U.S.C. § 2205(2)(C) generally mirrors these requirements and

provides that presidential records “shall be made available . . . (C) to either House of

Congress, or, to the extent of matter within its jurisdiction, to any committee or

subcommittee thereof if such records contain information that is needed for the

conduct of its business and that is not otherwise available.” (emphasis added).

Likewise, 36 C.F.R. § 1270.44 effectively repeats and mirrors these requirements.

Indeed, the Committee’s requests fails to satisfy the relevant constitutional,

statutory, and regulatory frameworks.

39. The “legitimate legislative purpose” requirement stems directly from the

Constitution. “The powers of Congress . . . are dependent solely on the Constitution,”

and no express power in that instrument allows Congress to investigate individuals

or to issue compulsory process. Kilbourn v. Thompson, 103 U.S. 168, 182-89 (1880).

The Constitution instead permits Congress to enact certain kinds of legislation. See,

e.g., Art. I, § 8. Thus, Congress’s power to investigate “is justified solely as an adjunct

to the legislative process.” Watkins v. United States, 354 U.S. 178, 197 (1957).

40. “Oversight” and “transparency,” in a vacuum, are not legitimate

legislative purposes. “[T]here is no congressional power to expose for the sake of

exposure.” Id. at 200. “No inquiry is an end in itself; it must be related to, and in

furtherance of, a legitimate task of the Congress.” Id. at 187.

41. Second, the Supreme Court in Mazars noted “courts should insist on a

subpoena no broader than reasonably necessary to support Congress’s legislative

objective.” 140 S.Ct. at 2036. Thus, the Supreme Court has noted that where, as here,

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a plaintiff issues broad requests that “ask for everything under the sky,” the burden

should not be placed on the President of “critiquing the unacceptable discovery

requests line by line.” Cheney v. U.S. Dist. Ct. for D.C., 542 U.S. 367, 387-88 (2004).

Courts should therefore be wary of requiring the President even to assert the

executive privilege in response to broad requests. Id.

42. Third, “courts should be attentive to the nature of the evidence offered

by Congress to establish that a subpoena advances a valid legislative purpose.”

Mazars, 140 S.Ct. at 2036. Where Congress contemplates legislation that “raises

sensitive constitutional issues, such as legislation concerning the Presidency . . . it is

impossible to conclude that a subpoena is designed to advance a valid legislative

purpose unless Congress adequately identifies its aims and explains why the

President’s information will advance its consideration of the possible legislation.” Id.

43. The Committee has utterly failed to come forward with such evidence

here to satisfy the standard; there is no specific legislative need for the privileged

documents and materials requested, much less a “demonstrably critical” one. Senate

Select Comm., 498 F.2d at 731.

44. What the Committee appears to seek here is a “precise reconstruction of

past events,” not because there are “specific legislative decisions that cannot

responsibly be made without” it, but simply for the sake of the information itself. Id.

at 732-33. That purpose does not clear the high bar required to overcome an assertion

of executive privilege. The “informing function” Congress possesses under Article I

“is that of informing itself about subjects susceptible to legislation, not that of

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informing the public.” Miller v. Transamerican Press, Inc., 709 F.2d 524, 531 (9th Cir.

1983) (citing Hutchinson v. Proxmire, 443 U.S. 111, 132-33 (1979)); see also Assertion

of Executive Privilege Concerning the Dismissal and Replacement of U.S. Attorneys,

31 Op. O.L.C. 1, 8 (2007) (“Broad, generalized assertions that the requested materials

are of public import are simply insufficient under the ‘demonstrably critical’

standard.”). The Committee has not identified any “specific legislative decisions that

cannot responsibly be made without access” to the privileged materials. Senate Select

Comm., 498 F.2d at 733.

45. Additionally, because Congress must have a legitimate legislative

purpose, it cannot exercise “any of the powers of law enforcement.” Quinn v. United

States, 349 U.S. 155, 161 (1955). Those powers “are assigned under our Constitution

to the Executive and the Judiciary.” Id. Put simply, Congress is not “a law

enforcement or trial agency,” and congressional investigations conducted “for the

personal aggrandizement of the investigators” or “to punish those investigated” are

“indefensible.” Watkins, 354 U.S. at 187. Our tripartite system of separated powers

requires that “any one of the[] branches shall not be permitted to encroach upon the

powers confided to the others, but that each shall by the law of its creation be limited

to the exercise of the powers appropriate to its own department and no other.”

Kilbourn, 103 U.S. at 190-91.

46. Further, when a request for information is issued by a single committee,

a legislative purpose is not legitimate unless it falls within that committee’s

jurisdiction. “The theory of a committee inquiry is that the committee members are

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serving as the representatives of the parent assembly in collecting information for a

legislative purpose.” Watkins, 354 U.S. at 200. Congress therefore must “spell out

that group’s jurisdiction and purpose with sufficient particularity . . . in the

authorizing resolution,” which “is the committee’s charter.” Id. at 201. The committee

“must conform strictly to the resolution.” Exxon Corp. v. FTC, 589 F.2d 582, 592 (D.C.

Cir. 1978). And when an investigation is “novel” or “expansive,” courts will construe

the committee’s jurisdiction “narrowly.” Tobin v. United States, 306 F.2d 270, 275

(D.C. Cir. 1962).

47. By contrast, the Committee has read its own charter— “to investigate

and report upon the facts, circumstances, and causes relating to the events of January

6, 2021, at the United States Capitol”— expansively, and apparently believes it has

been given a free pass to request a sweeping set of documents and records, which

unquestionably contain information protected from disclosure by the executive and

other privileges, including but not limited to the presidential-communications,

deliberative-process, and attorney-client privileges.

48. Finally, the Mazars court instructed that “burdens imposed by a

congressional subpoena should be carefully scrutinized, for they stem from a rival

political branch that has an ongoing relationship with the President and incentives

to use subpoenas for institutional advantage.” Mazars, 140 S.Ct. at 2036. These

burdens are not sufficiently diminished by the fact that the President is no longer in

office. The Supreme Court has “reject[ed] the argument that only an incumbent

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President may assert” separation-of-powers claims. Nixon v. Administrator of Gen.

Servs., 433 U.S. 425, 439 (1977).

49. Executive privilege “safeguards the public interest in candid,

confidential deliberations within the Executive Branch; it is ‘fundamental to the

operation of Government.’ As a result, information subject to executive privilege

deserves ‘the greatest protection consistent with the fair administration of justice.’”

Id. at 2032 (quoting Nixon, 418 U. S., at 708, 713). “Human experience teaches that

those who expect public dissemination of their remarks may well temper candor with

a concern for appearances and for their own interests to the detriment of the

decisionmaking process.” Nixon, 418 U.S. at 705. As the Supreme Court has

recognized, “[a] President and those who assist him must be free to explore

alternatives in the process of shaping policies and making decisions and to do so in a

way that many would be unwilling to express except privately.” Id. at 708.

50. The President has identified a limited number of records allegedly

responsive to the Committee’s request that are covered by numerous privileges,

including the presidential communications privilege, and the deliberative process

privilege, among others. Moreover, the request seeks documents protected by the

attorney-client privilege and the attorney work-product doctrine. The Committee has

failed to explain or even articulate any need for the information it has requested,

much less a demonstrated, specific one worthy of piercing executive privilege and

other privileges. And nothing in the Committee’s request meets the high bar of

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explaining how or why the requested information is demonstrably critical to a

legislative purpose. Thus, the Court should invalidate the Committee’s request.

51. The Committee has instructed the Archivist to provide all of the

requested information no later than September 9, 2021, but the Archivist has

indicated that he will provide the privileged requested documents by November 12,

2021, subject to a court order. This Court should intervene, invalidate the requests,

and require the Committee to narrow its search prior to burdening the President with

a line-by-line critique. See Cheney, 542 U.S. at 389-390. The process of obtaining and

reviewing documents from NARA in such a truncated time frame is unbelievably

burdensome. The default time frame provided in the PRA protects records from

political vicissitudes and also gives the Archivist time to properly process the records.

Given these substantial burdens, the Court should intervene and invalidate the

requests.

52. Further, in cases like this, where a committee has declined to grant

sufficient time to conduct a full review, there is a longstanding bipartisan tradition

of protective assertions of executive privilege designed to ensure the ability of the

Executive to make a final assertion, if necessary, over some or all of the requested

material. See Protective Assertion of Executive Privilege Regarding White House

Counsel’s Office Documents, 20 Op. O.L.C. 1 (1996) (opinion of Attorney General

Janet Reno). In the event this Court does not declare the requests invalid and

unconstitutional, this protective assertion will ensure President Trump’s ability to

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decide whether to make a conclusive assertion of executive privilege following a full

review of the requested materials. See Exh. 8.

53. If the PRA is read so broadly as to allow an incumbent President

unfettered discretion to waive the previous President’s executive privilege, mere

months following an administration change, then it would render the act

unconstitutional. As has been reaffirmed by the Supreme Court, the executive

privilege “safeguards the public interest in candid, confidential deliberations within

the Executive Branch; it is fundamental to the ‘operation of Government.’” Mazars,

140 S.Ct. at 2032 (quoting United States v. Nixon, 418 U.S. 683, 708 (1974)).

CLAIM FOR RELIEF

54. Plaintiff incorporates all prior allegations.

WHEREFORE, Plaintiff asks this Court to enter judgment in his favor and to

provide the following relief:

a. A declaratory judgment that the Committee’s requests are invalid and

unenforceable under the Constitution and laws of the United States;

b. In the alternative, a declaration that the Presidential Records Act is an

unconstitutional violation of separation of powers and is void ab initio;

c. A preliminary and permanent injunction enjoining the Committee

including Chairman Thompson from taking any actions to enforce the requests, from

imposing sanctions for noncompliance with the requests, and from inspecting, using,

maintaining, or disclosing any information obtained as a result of the requests;

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d. A preliminary and permanent injunction enjoining the Archivist and

NARA from producing the requested information;

e. In the alternative to the above, a preliminary injunction enjoining the

Archivist and NARA from producing the requested information, and enjoining the

Committee and Chairman Thompson from taking any actions to enforce the requests,

until President Trump has had sufficient opportunity to conduct a comprehensive

review of all records the Archivist intends to produce before any presidential record

is produced to the Committee;

f. Plaintiff’s reasonable costs and expenses, including attorneys’ fees, as

permitted by law; and

g. Such other and further relief as the Court may deem just proper.

Dated: October 18, 2021 Respectfully submitted,

/s/ Jesse R. Binnall

Jesse R. Binnall (VA022)
BINNALL LAW GROUP, PLLC
717 King Street, Suite 200
Alexandria, Virginia 22314
Phone: (703) 888-1943
Fax: (703) 888-1930
Email: [email protected]

Attorney for Plaintiff

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