Trump Team Opening Brief On Appeal For Jan 6 Records

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The case appears to be about Trump appealing a district court ruling related to documents requested by the January 6th committee from the National Archives.

The case is about Trump appealing a district court ruling that denied his request for a preliminary injunction to block the National Archives from releasing records to the January 6th committee.

Trump's legal team argues that releasing the records would cause him irreparable harm and that he is likely to succeed on the merits of his claims of executive privilege. They also argue the committee has not shown it will be harmed by delaying release of the records.

USCA Case #21-5254 Document #1922644 Filed: 11/16/2021 Page 1 of 68

Set for Argument: November 30, 2021


No. 21-5254

IN THE UNITED STATES COURT OF APPEALS


FOR THE DISTRICT OF COLUMBIA CIRCUIT
_____________________

DONALD J. TRUMP, in his capacity as


The 45th President of the United States,

Plaintiff-Appellant,
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; THE UNITED STATES HOUSE SELECT COMMITTEE TO INVESTIGATE
THE JANUARY 6th ATTACK ON THE UNITED STATES CAPITOL; DAVID S.
FERRIERO, in his official capacity as Archivist of the United States; and THE
NATIONAL ARCHIVES AND RECORDS ADMINISTRATION,

Defendant-Appellees.
_______________________

On Appeal from the United States District Court


for the District of Columbia
_______________________

BRIEF FOR PLAINTIFF-APPELLANT


DONALD J. TRUMP
_______________________

Jesse R. Binnall Justin R. Clark


BINNALL LAW GROUP, PLLC ELECTIONS, LLC
717 King Street, Suite 200 1050 Connecticut Avenue, NE, Suite 500
Alexandria, VA 22314 Washington, D.C. 20036
Tel: (703) 888-1943 (202) 987-9944
Fax: (703) 888-1930 [email protected]
[email protected]
COUNSEL FOR PRESIDENT DONALD J. TRUMP
USCA Case #21-5254 Document #1922644 Filed: 11/16/2021 Page 2 of 68

CERTIFICATE AS TO PARTIES,
RULINGS, AND RELATED CASE

The undersigned counsel of record certifies that the following

interested persons and entities described in Rule 28(a)(1)(A) have an

interest in the outcome of this case. These representations are made in

order that the judges of this Court may evaluate possible disqualification or

recusal.

A. Parties and Amici

The parties that appeared before the district court and that are before

this Court are:

1. Plaintiff-Appellant

President Donald J. Trump

2. Current and Former Attorneys for Plaintiff-Appellant

Current Attorneys:
Jesse R. Binnall
Binnall Law Group, PLLC
717 King Street, Suite 200
Alexandria, Virginia 22314

i
USCA Case #21-5254 Document #1922644 Filed: 11/16/2021 Page 3 of 68

Justin R. Clark
Elections, LLC
1050 Connecticut Ave NE, Suite 500
Washington, DC 20036

Former Attorneys:

None.

3. Defendants-Appellees

Bennie G. Thompson

The United States House Select Committee to Investigate the


January 6th Attack on the United States Capitol

David S. Ferriero

The National Archives and Records Administration

4. Current and Former Attorneys for Defendants-Appellees

Current Attorneys:

Douglas N. Letter
Stacie M. Fahsel
Eric R. Columbus
Todd B. Tatelman
Office of General Counsel
U.S. House of Representatives
5140 O’Neill House Office Building
Washington, D.C. 20515

ii
USCA Case #21-5254 Document #1922644 Filed: 11/16/2021 Page 4 of 68

Annie L. Owens
Joseph W. Mead
Mary B. McCord
Institute for Constitutional Advocacy and Protection
Georgetown University Law Center
600 New Jersey Avenue NW
Washington, D.C. 20001
Attorneys for or Defendants Bennie G. Thompson and the United States
House Select Committee to Investigate the January 6th Attack on the
United States Capitol

Brian M. Boynton
Brian D. Netter
Elizabeth J. Shapiro
James J. Gilligan
United States Department of Justice
Civil Division, Federal Programs Branch
1100 L Street, NW, Room 12100
Washington, D.C. 20530
Attorneys for NARA defendants

Former Attorneys:

None.

5. Other Interested Persons (Amici)

Anne H. Tindall
Cameron Kistler
Erica Newland
John Langford
United To Protect Democracy
2020 Pennsylvania Ave. NW, #163

iii
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Washington, DC 20006
Attorneys for Amicus Curiae Former Members of Congress

John A. Freedman
Owen Dunn
Samuel F. Callahan
Arnold & Porter Kaye Scholer LLP
601 Massachusetts Ave, NW
Washington, DC 20001-3743
Attorneys for Amicus Curiae Former Members of Congress

Kelly B. McClanahan, Esq.


National Security Counselors
4702 Levada Terrace
Rockville, MD 20853
Attorney for Amicus Curiae Government Information Watch, National
Security Counselors, and Louis Fisher

B. Rulings Under Review

The ruling under review is the Order of the U.S. District Court for the

District of Columbia (Chutkan, J.), docketed November 9, 2021, denying

Plaintiff-Appellant Donald J. Trump’s Motion for Preliminary Injunction.

Trump v. Thompson, 2021 WL 5218398 (D.D.C. 2021).

C. Related Cases

The case now pending before this Court was previously before the

district court below and this Court for Plaintiff-Appellant’s Emergency

iv
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Motion for an Administrative Injunction. Plaintiff-Appellant is not aware of

any other related case pending before this Court or any court.

/s/ Jesse R. Binnall


Jesse R. Binnall
Counsel for President Donald J.
Trump

v
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TABLE OF CONTENTS

CERTIFICATE AS TO PARTIES, ..................................................................................................i


RULINGS, AND RELATED CASE .............................................................................................. ii
TABLE OF CONTENTS ...............................................................................................................vi
TABLE OF AUTHORITIES ........................................................................................................ vii
GLOSSARY ...................................................................................................................................xi
JURISDICTIONAL STATEMENT ................................................................................................ 3
STATEMENT OF ISSUES ............................................................................................................. 4
STATUTES AND REGULATIONS .............................................................................................. 5
STATEMENT OF THE CASE ....................................................................................................... 5
STANDARD OF REVIEW ........................................................................................................... 12
SUMMARY OF ARGUMENT ..................................................................................................... 12
ARGUMENT ................................................................................................................................ 16
I. President Trump is Likely to Succeed on the Merits ........................... 17
II. Irreparable Harm ....................................................................................... 48
III. Balance of Equities and Public Interest .................................................. 51
CONCLUSION ............................................................................................................................. 54
CERTIFICATE OF COMPLIANCE ............................................................................................ 55
CERTIFICATE OF SERVICE ...................................................................................................... 56

vi
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TABLE OF AUTHORITIES

Cases
Ass’n of Cmty. Orgs. for Reform Now (ACORN) v. FEMA,
463 F. Supp. 2d 26, 36 (D.D.C. 2006) .............................................................. 52

Cheney v. U.S. Dist. Court,


542 U.S. 367, 387 (2004) .................................................................................... 26

Council on American-Islamic Relations v. Gaubatz,


667 F. Supp. 2d 67, 76 (D.D.C. 2009) .............................................................. 50

Doe v. Mattis,
928 F.3d 1, 7 (D.C. Cir. 2019) ........................................................................... 16

Exxon Corp. v. FTC,


589 F.2d 582, 592 (D.C. Cir. 1978) ................................................................... 32

Fund for Animals v. Norton,


281 F. Supp. 2d 209, 222 (D.D.C. 2003) .......................................................... 53

Gordon v. Holder,
721 F.3d 638, 653 (2013) ................................................................................... 52

Guitierrez de Martinez v. Lamagno,


515 U.S. 417, 428 (1995) .................................................................................... 38

In re Beef Indus. Antitrust Litig.,


589 F.2d 786, 787-88 (5th Cir. 1979) ................................................................ 32

In re Ford Motor Co.,


110 F.3d 954, 963 (3d Cir. 1997) ...................................................................... 50

In re Sealed Case No. 98-3077,


151 F.3d 1059, 1065 (D.C. Cir. 1998) ............................................................... 50

vii
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In re Sealed Case,
121 F.3d 729, 742 (D.C. Cir. 1997) ................................................................... 36

Judicial Watch, Inc. v. Dept. of Justice,


365 F.3d 1108, 1114 (D.C. Cir. 2004) ............................................................... 36

Kilbourn v. Thompson,
103 U.S. 168, 182–89 (1880) .............................................................................. 19

MediNatura, Inc. v. FDA,


998 F.3d 931, 940 (D.C. Cir. 2021) ................................................................... 12

Metro. Life Ins. Co. v. Usery,


426 F. Supp. 150, 172 (D.D.C. 1976) ............................................................... 51

* Nixon v. Adm’r of Gen. Servs. (“GSA”),


433 U.S. 425, 439 (1977) ........................................................................ 14, 39, 50

Nken v. Holder,
556 U.S. 418, 435 (2009) .................................................................................... 51

O’Donnell Const. Co. v. Dist. of Columbia,


963 F.2d 420, 429 (D.C. Cir. 1992) ................................................................... 52

PepsiCo, Inc. v. Redmond,


1996 WL 3965, at *30 (N.D. Ill. 1996) .............................................................. 51

Providence Journal Co. v. FBI,


595 F.2d 889, 890 (1st Cir. 1979) ................................................................ 51, 53

Senate Select Comm. on Presidential Campaign Activities v. Nixon,


498 F.2d 725, 731 (D.C. Cir. 1974) ................................................................... 23

Shapiro v. U.S. Dep’t of Justice,


2016 WL 3023980, at *7 (D.D.C. May 25, 2016) ............................................. 53

viii
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* Trump v. Mazars USA, LLP,


140 S. Ct. 2019, 2032 (2020) ...................................................................... passim

* U.S. Servicemen’s Fund v. Eastland,


488 F.2d 1252, 1259 (D.C. Cir. 1973) ............................................................... 19

* United States v. Nixon,


418 U.S. 683, 708 (1974) .................................................................... 7, 16, 36, 47

United States v. Reynolds,


345 U.S. 1, 7 (1953) ............................................................................................ 49

Watkins v. United States,


354 U.S. 178, 197 (1957) ............................................................................ passim

Statutes

28 U.S.C. § 1292(a)(1) ............................................................................................. 4

28 U.S.C. § 1331 ...................................................................................................... 3

* 44 U.S.C. § 2204........................................................................................ 8, 34, 48

* 44 U.S.C. § 2205........................................................................................ 9, 33, 34

Other Authorities

Exec. Order No. 13489, 74 Fed. Reg. 4669 (Jan. 26, 2009) ............................... 10

The Federalist No. 10,p. 79 (C. Rossiter ed. 1961) (J. Madison) ....................... 38

Regulations

36 C.F.R. § 1270.44 ............................................................................................... 50

36 C.F.R. § 1270.44 (2002) .......................................................................... 9, 33, 34

ix
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U.S. Constitution

U.S. Const. art. I, § 8 ............................................................................................ 19

U.S. Const. art. III, § 1 .......................................................................................... 42

___________________

* Authorities upon which President Trump chiefly relies are marked with
an asterisk.

x
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GLOSSARY

Archivist The Archivist of the United States

Committee United States House Select Committee to


Investigate the January 6th Attack on the United
States Capitol

EOP Executive Office of the President

H. Res. 503 House Resolution 503

NARA National Archives and Records Administration

OVP Office of the Vice President

PRA Presidential Records Act

xi
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Principles of ordered liberty and limited government forbid the

exercise of government power beyond limits imposed by our Constitution

and laws. Appellees and the court below contend that Congress possesses

almost limitless power to issue requests for sensitive, privileged presidential

records on any matter, at any time, for any reason. This unprecedented claim

lacks a limiting principle, is not consistent with our constitutional separation

of powers, and should be rejected. Further, under our Constitution and laws,

no individual, including the sitting President, has the unilateral power to

extinguish the executive privilege rights of living, former Presidents. Indeed,

it is well settled that executive privilege survives a President’s term of office.

At minimum, a dispute concerning the production of records subject to

executive privilege must be resolved through the applicable constitutional

and statutory framework, including a thorough examination of the

documents at issue through the standard judicial process for privilege

claims.

Here, a congressional committee sent an unprecedented and

overbroad records request effectively seeking every presidential record and

1
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communication that could tenuously relate to events that occurred on

January 6, 2021. It did so by casting a “wide net” for nearly every

communication and record created in the White House from April 2020

onward. JA 205. The district court sanctioned this request, which it openly

admitted was “unbelievably broad,” without identifying a single piece of

proposed legislation or the relation of the requested records to advancing

such legislation. JA 257. Moreover, the district court misapplied the

constitutional and statutory scheme used to determine the applicability of

executive privilege.

Both Appellees and the district court justified this overbroad request

by claiming unprecedented powers for both Congress and the incumbent

President. The lower court effectively held that the decision of an incumbent

former President regarding privilege claims of a living former President was

the final word on executive privilege and vitiated limits on congressional

power to request information. As the district court correctly noted,

“Presidents are not kings,” yet congressional power is not limitless,

regardless of presidential dictate. JA 194; Kilbourn v. Thompson, 103 U.S. 168,

2
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182 (1880); U.S. CONST. Art. 1, § 1, cl. 1. The law is clear that disagreements

between incumbent and former Presidents on the assertion of executive

privilege over records created during such former President’s tenure are

subject to meaningful judicial review, not a rubber stamp.

The stakes in this case are high. A decision upholding the Committees’

request to NARA would have enormous consequences, forever changing the

dynamics between the political branches. It is naïve to assume that the

fallout will be limited to President Trump or the events of January 6, 2021.

Every Congress will point to some unprecedented thing about “this

President” to justify a request for his presidential records. In these hyper-

partisan times, Congress will increasingly and inevitably use this new

weapon to perpetually harass its political rival.

JURISDICTIONAL STATEMENT

The district court had jurisdiction over this case pursuant to 28 U.S.C.

§ 1331 because it involves issues arising under the Constitution and laws of

the United States. On November 9, 2021, the district court denied President

Trump’s Motion for a Preliminary Injunction. JA 216. That same day,

3
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President Trump timely filed his notice of appeal. JA 217. Accordingly, this

Court has jurisdiction pursuant to 28 U.S.C. § 1292(a)(1).

STATEMENT OF ISSUES

1. Did the district court err when it determined that a congressional

records request for presidential records did not violate the

Constitution or statute when it was admittedly broad and

inadequately linked to a legislative purpose or constitutional

prerogative of Congress?

2. Did the district court err in concluding that an incumbent President

has unfettered discretion in deciding whether to produce records of a

living, former President to Congress notwithstanding a former

President’s assertion of executive privilege?

3. Is a living former President of the United States irreparably harmed by

the production of his confidential presidential records to Congress,

despite his objection that the request is contrary to the Constitution

and the laws of the United States and over his assertion of executive

privilege?

4
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4. Did the district court err when it held that a former President was not

entitled to an injunction because equitable injunctive factors favored

production of the presidential records at issue, despite the

constitutional infirmities of the requests and the chilling effects in

executive deliberations that will inevitably result from disclosure?

STATUTES AND REGULATIONS

This case involves the Presidential Records Act, of 1978, 44 U.S.C. §§

2201-2209 and the regulations implementing the Presidential Records Act,

36 C.F.R. §§ 1270.01-1270.50.

STATEMENT OF THE CASE

After the 2020 election, Democrats in Congress created the United

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

United States Capitol pursuant to House Resolution 503 to effectively

intimidate and harass President Trump and his closest advisors under the

guise of investigating the events of January 6, 2021. House Resolution 503

purports to vest the Committee with unfettered powers to investigate the

activities of intelligence agencies, law enforcement agencies, and the Armed

5
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Forces surrounding January 6th, and provides that the Committee will issue

a final report on its activities. JA 92-105. It also specifically prohibits the

Committee from holding the markup of any legislation. Id. at 100. This

erodes any asserted legislative purpose of the Committee. Notably, this

resolution never discusses the authority to investigate the Executive Office

of the President. Id. at 92-105.

On August 25, 2021, the Committee sent self-described “sweeping”

requests for presidential records to the Archivist of the United States seeking

information from the Executive Office of the President and the Office of the

Vice President. JA 33-44. These requests were signed by Committee

Chairman Bennie G. Thompson. Id. at 33. The Committee’s requests are

startling in scope and utterly lacking in specificity. For example, among

myriad other documents requested, the Committee seeks:

[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.

6
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Id. at 34. 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.” Id. at 41.

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)). The Committee has

also requested “[a]ll documents and communications within the White

House on January 6, 2021, relating in any way to . . . the January 6, 2021,

7
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rally . . . [or] Donald J. Trump” and countless other individuals including

close personal advisors to the President. JA at 35 (emphasis added).

The Committee’s request purports to be made “pursuant to the

Presidential Records Act (44 U.S.C. § 2205(2)(C)),” see JA 33. 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 a former President to administer and store presidential records, among

other duties, after the President leaves office. See generally 44 U.S.C. §§ 2202–

2208.

Under the PRA, the President is permitted to specify a term not to

exceed twelve years after his term, during which access to presidential

records will be restricted. See 44 U.S.C. § 2204. Section 2205(2)(C) provides

three exceptions to the PRA’s access restrictions. In pertinent part, it states

“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

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for the conduct of its business and is not otherwise available.” 44 U.S.C.

§ 2205(2)(C).

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 former and incumbent Presidents of a

request for records that were created during that former President’s term of

office. 36 C.F.R. § 1270.44 (2002). The incumbent or former President must

personally assert a claim of constitutionally based privilege against

disclosing a presidential record or a reasonably segregable portion thereof.

Id. If a former President asserts privilege, the Archivist consults the

incumbent President to determine whether the incumbent President agrees.1

Id. If, as here, the incumbent President chooses to waive, the Archivist

discloses the presidential record unless a court directs otherwise. Id.

1
While the Archivist makes determinations as to responsiveness and
searches for such documents, there is no constitutional or statutory basis for
him to serve as an adjudicator of questions regarding the assertion or waiver
of privilege. Likewise, the Archivist’s position on whether Congress has met
its burden under law to only serve requests that are specifically tethered to
a legislative purpose is immaterial.
9
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Finally, Executive Order No. 13489 requires the Archivist to notify

both Presidents of his determination to release certain records at least thirty

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

allowed under the NARA regulations. Exec. Order No. 13489, 74 Fed. Reg.

4669 (Jan. 26, 2009).

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. JA 110.

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. Id at 107-108. That same day,

pursuant to the PRA, associated regulations, and the applicable 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. Id. at 110–11.

10
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Subsequently, President Trump made a further assertion of executive

privilege on October 21, 2021. Id. at 165–71.2

The Biden White House notified the Archivist that it would not assert

executive privilege over the privileged 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, absent an intervening court order. JA 113.

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 an intervening

court order. Id. at 162-163. Likewise, the Archivist notified President Trump

NARA’s review of responsive records continues on a rolling basis; on


2

November 15, 2021, President Trump made another assertion of privilege.


11
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that further documents would be released over his privilege objections on

November 26, 2021, absent a court order. Id. at 176.

President Trump acted promptly; he filed his complaint on October 18,

2021, JA at 6-119, and his Motion for a Preliminary Injunction on October 19,

2021. After briefing, the district court heard argument on November 4, 2021,

and denied the President’s motion on November 9, 2021. Id. at 216. President

Trump filed his Notice of Appeal that same day, Id. at 217, and shortly

thereafter moved the district court for an injunction pending appeal or an

administrative injunction. The district court subsequently denied President

Trump’s motion, Id. at 281–86, but this Court granted an administrative

injunction and expedited the appeal.

STANDARD OF REVIEW

A circuit court reviews a district court’s weighing of the four

preliminary injunction factors for abuse of discretion; it considers legal

conclusions de novo. MediNatura, Inc. v. FDA, 998 F.3d 931, 940 (D.C. Cir.

2021). The questions underlying issues 1, 2, and 3 are all legal disputes; they

relate to legal holdings made by the district court regarding the

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constitutional and statutory rights of former President’s to challenge records

requests by Congress and whether, as a matter of law, a former President is

irreparably harmed by the release of those records absent an injunction.

Consequently, the Court reviews each of those questions de novo. See Gordon

v. Holder, 632 F.3d 722, 725 (D.C. Cir. 2011). Issue 4 concerns balancing

equities and public interest in deciding whether to grant an injunction. While

any balancing analysis in an injunction is generally reviewed for abuse of

discretion, the legal conclusion of whether a constitutional or statutory right

applies, is a legal determination and is also reviewed de novo. Id.

SUMMARY OF ARGUMENT

The district court’s ruling misapplied binding Supreme Court

precedent when it authorized the Committee’s overly broad records request

and minimized President Trump’s legitimate interest in exerting executive

privilege. The court’s cursory misapplication of the Supreme Court’s Mazars

factors and the specific requirements of the PRA, ignores the expansive

scope of the requests here and wrongly justifies it based upon the improper

and ineffective waiver of executive privilege by the incumbent President.

13
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The lower court also adopted an unprecedented and unfounded test

for deciding disputes regarding executive privilege between an incumbent

and former President. The court wholly ignored the Supreme Court’s clear

statement that executive “privilege survives the individual President's

tenure,” Nixon v. Adm’r of Gen. Servs. (“GSA”), 433 U.S. 425, 439 (1977), and

instead wrongly insisted that the incumbent President’s decision to waive

the privilege overruled the former President’s assertion of it. Additionally,

the district court wholly ignored the PRA’s limitations on Congress’s

authority to access and review presidential records. In essence, the district

court ruled that the sitting President has the sole power to invoke executive

privilege, regardless of statutory and constitutional limitations. This

decision would gut the foundation of executive privilege and hamstring all

officials within the Executive Branch that rely upon the privilege for the

proper functioning of the government. Moreover, the PRA specifically

confers on former Presidents the power to vindicate their interests in court.

Congressional committees’ investigatory powers are confined by their

legislative function, certain statutory parameters, and the legitimate

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constitutional prerogatives of the co-equal branches of government. Yet, the

Committee seeks disclosure of potentially millions of pages of documents

that have little to no bearing on the events of January 6th in a misguided

attempt to harass President Trump and senior members of his

administration. Regardless of President Biden’s position with respect to the

production, Congress has not and cannot meet its constitutional and

statutory burdens of showing a reasonable connection between the

categories of presidential records sought and its purported legislative

purpose.

The Court should balance the needs of judicial economy and

expediency. Instead of rubber-stamping Congress’s requests, the Court

should find that the Committee’s requests fail to comply with the

Constitution, the PRA, and its associated regulations. Alternatively, the

district court should be instructed to grant the preliminary injunction and

perform a full examination of the privileged documents at issue to determine

whether President Trump’s assertion of executive privilege is valid.

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ARGUMENT

Contrary to the decision of the district court, President Trump is

entitled to a preliminary injunction because (a) the Committee’s request is

not in furtherance of a legitimate legislative purpose, Mazars, 140 S. Ct. at

2035, and (b) the request seeks clearly privileged documents and the

Committee lacks a specific need for the requested information, Nixon, 418

U.S. at 713. A preliminary injunction should issue based on the consideration

of four factors: (i) whether the party seeking the injunction is likely to

succeed on the merits of the action, (ii) whether the party is likely to suffer

irreparable harm without an injunction, (iii) whether the balance of equities

tips in the party’s favor, and (iv) whether an injunction would serve the

public interest. Doe v. Mattis, 928 F.3d 1, 7 (D.C. Cir. 2019).

President Trump is likely to succeed on the merits. The disagreement

between an incumbent President and his predecessor from a rival political

party highlights the importance of executive privilege and the ability of

presidents and their advisers to reliably make and receive full and frank

advice, without concern that communications will be publicly released to

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meet a political objective. This rationale, which is the is the crux of executive

privilege, is totally undermined by the district court’s opinion. When the

Supreme Court noted that executive privilege exists for the benefit of the

Republic, it meant the People’s interest in a functioning government, not the

whims of the sitting President who may be unable see past his own political

considerations. Granting interim relief will permit the Court to consider the

important constitutional issues here, and, after consideration of the

evidence, to come to thorough, reasoned conclusions.

The Plaintiff also satisfies the other factors of the four-factor test for a

preliminary injunction. President Trump is likely to prevail on the merits of

his constitutional and statutory claims, he will suffer irreparable harm if the

status quo is not preserved, and the balance of harms and public interest

favor interim relief. The district court failed to apply this standard to the

facts of this case properly and thus should be reversed.

I. President Trump is Likely to Succeed on the Merits

The Appellant is likely to succeed on the merits of his claims that the

expansive request here (a) serves no valid legislative purpose, (b) is

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prohibited because the Committee’s request exceeds the statutory

framework set forth in the PRA and associated regulations, and (c) seeks

documents that are protected by numerous legal privileges and the

Committee has no specific need for the requested records.

a. The Request Serves No Legislative Purpose, an Essential


Component of Any Congressional Request for Documents

The district court’s opinion puts the cart before the horse by first

holding that President Biden’s refusal to exert executive privilege is

dispositive with respect to privilege and then applying the wrong test

regarding the constitutionality of congressional requests. JA 193-204. Before

and apart from any discussion of executive privilege, all congressional

requests must comply with the Constitution, regardless of the dictates of the

incumbent president. Mazars, 140 S. Ct. at 2035. The court may only consider

questions of executive privilege after it has determined that a congressional

request serves a valid legislative purpose. Id.

When Congress seeks a person’s information or documents, the person

whose information will be exposed may sue in federal court for an

“injunction or declaratory judgment.” U.S. Servicemen’s Fund v. Eastland, 488


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F.2d 1252, 1259 (D.C. Cir. 1973). A “valid legislative purpose,” articulating a

“‘specific need’ for the . . . information,” must support all congressional

information requests. Mazars, 140 S. Ct. at 2032 (quoting Nixon, 418 U.S. at

713).

The “valid legislative purpose” requirement stems directly from the

Constitution. Kilbourn, 103 U.S. at 182–89. “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 boundless

records requests. Id. The Constitution instead permits Congress to enact

certain kinds of legislation, see, e.g., U.S. CONST. art. I, § 8, and 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). Just as

Rather than respecting these important constitutional mandates, the

district court adopted the wrong test for determining whether a

congressional request serves a valid legislative purpose. First, the district

court erred by claiming that a congressional request is valid if it concerns

topics on which legislation “could be had.” JA 204. The Supreme Court

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soundly rejected this argument barely a year ago. Mazars, 140 S. Ct. at 2034

(rejecting Congress’s approach because it aggravated separation of powers

principles by eschewing any limits on the power to subpoena presidential

records). The lower court’s claim that “Congress need not . . . identify

specific legislation within the context of a request for documents or

testimony” is also wrong. Opinion at 28. The Committee must “adequately

identif[y] [its] aims and explain[] why the President’s information will

advance its consideration of the possible legislation.” Mazars, 140 S. Ct. at

2036, and its failure to do so here is fatal to its request. The lower court’s

citation of McGrain v. Daugherty, 273 U.S. 135, 161 (1927), see JA 204, is

unavailing, as the Supreme Court’s decision in Mazars is binding and clearly

instructive on this issue.

Next, the court erred by claiming that the incumbent President’s

privilege determination could somehow legitimize the Committee’s fishing

expedition. JA 207. There is no precedent for such a holding, which would

give incumbent Presidents the unprecedented power to validate or

invalidate congressional requests that serve no legitimate legislative

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purposes simply by waiving or claiming privilege. This offends the

separation of powers and is inconsistent with Supreme Court precedent.

In Congress’s request, Chairman Thompson claims the purpose of his

request is to investigate the facts, circumstances, and causes of the events of

January 6, 2021. JA 33. Chairman Thompson, however, fails to identify

anything in the privileged communications that could advance or inform

any legitimate legislative purpose.

Finally, the Committee’s request has an improper law enforcement

purpose and is thus invalid. Congress may not issue a request for the

purpose of “law enforcement,” Quinn, 349 U. S., at 161, and this request

plainly seeks to “try” President Trump “for . . . wrongdoing.” McGrain, 273

U. S. at 179. Contrary to Appellee’s assertion, moreover, President Trump

does not complain of the request because it might disclose some

wrongdoing, as such wrongdoing never occurred. Rather, the request’s

abject failure to identify proposed legislation and why the President’s

information will advance such legislation are evidence that the Committee’s

request has an improper law enforcement purpose and that its fundamental

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nature is plainly for law enforcement purposes. 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 (cleaned up).

Finally, any investigation into alleged claims of wrongdoing is a

quintessential law-enforcement task reserved to the executive and judicial

branches. Congress is not a law-enforcement branch of government; it

cannot seek information “for the sake of exposure.” Watkins, 354 U.S. at 200.

b. All Four Mazars Factors Confirm the Request Serves No Valid


Legislative Purpose in the Context of a Request Targeted at the
Executive Branch.

Any Congressional request must articulate a valid legislative purpose,

but when Congress seeks the most sensitive, privileged presidential records,

like those requested here, its burden is even heavier, because it is intruding

on a co-equal branch of government in a manner that affects the balance and

separation of powers. It must affirmatively show the requested documents

are “demonstrably critical to the responsible fulfillment of the Committee's

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functions.” Senate Select Comm. on Presidential Campaign Activities v. Nixon,

498 F.2d 725, 731 (D.C. Cir. 1974).

The Committee has failed to meet these “demanding standards,” while

boldly requesting presidential communications, including “Oval Office

communications over which the President asserted executive privilege.”

Mazars, 140 S. Ct. at 2031–32. In this case, the lower court itself even

described the request as “unbelievably broad” at oral argument, and

opposing counsel similarly admitted that the request was “broad.” JA 257.

These admissions should doom the request, and, at minimum, counsel in

favor of granting the requested relief here, given the weighty issues at stake.

These serious constitutional clashes are rarely litigated, but recently

the Supreme Court had cause to address the constitutionality of closely

related congressional records requests, and it provided four “special

considerations” meant to guide a court’s “careful analysis” in this delicate

realm. Mazars, 140 S. Ct. at 2035. These factors take “adequate account of the

separation of powers principles at stake, including both the significant

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legislative interests of Congress and the unique position of the President.”

Id. at 2035.

The first Mazars factor is “whether the asserted legislative purpose

warrants the significant step of involving the President and his papers.” Id.

at 2035 (internal quotations omitted); second, requires courts to “insist on a

subpoena no broader than reasonably necessary to support Congress's

legislative objective,” id. at 2036; third, “courts should be attentive to the

nature of the evidence offered by Congress to establish that a [request]

advances a valid legislative purpose,” id.; and fourth, courts should assess

the burdens imposed by the request because the records stem from a rival

political branch with incentives to use the records requests for “institutional

advantage.” Id. When the facts of this case are analyzed under the Mazars

factors, they confirm the abusive, wide-ranging request here serves no

legitimate legislative purpose and does violence to our tri-partite structure

of our government.

The district court’s cursory analysis of the four Mazars factors guts

them. JA 209-210. As discussed above, under the first Mazars factor, the

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lower court ignored the significant separation of powers concerns associated

with a congressional request for a President’s materials. This was error.

This was error. In addition, the request’s “particular legislative

objective” must “warrant[] the significant step of involving the President

and his papers.” Mazars, 140 S. Ct. at 2035. Here, the Committee has failed to

adequately explain any actual proposed legislation, much less why such

legislation would warrant the release of the requested records. Further,

“[u]nlike in criminal proceedings, where the very integrity of the judicial

system would be undermined without full disclosure of all the facts, efforts

to craft legislation involve predictive policy judgments that are not

hampered . . . in quite the same way when every scrap of potentially relevant

evidence is not available.” Mazars, 140 S. Ct. at 2035 (cleaned up). The

Committee has mountains of evidence regarding the events of January 6th,

and additional, privileged records are not needed for the Committee to

legislate.

The Committee has also never explained why other sources of

information—outside of the requested records—could not “reasonably

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

objective.” Id. at 2035-36. Moreover, “[t]he President’s unique constitutional

position means that Congress may not look to him as a ‘case study’ for

general legislation.” Id. at 2036. Chairman Thompson’s request openly flouts

this rule by admitting that the Committee’s request seeks to “identify lessons

learned, and recommend laws, policies, procedures, rules, or regulations

necessary . . . in the future,” effectively treating President Trump as a test

subject. JA 33.

The district court’s most egregious error, however, involved the

second Mazars factor, where the court claimed that because President Biden

has refused to assert executive privilege, the request is not overly broad. JA

210. The Supreme Court has held that requests must be “no broader than

reasonably necessary to support Congress’s legislative objective.” See

Mazars, 140 S. Ct. at 2036. “The specificity of the subpoena's request ‘serves

as an important safeguard against unnecessary intrusion into the operation

of the Office of the President.’” Id. (quoting Cheney v. U.S. Dist. Court, 542

U.S. 367, 387 (2004)). This is a constitutional limitation that stems from the

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important boundaries between the Branches. All congressional requests

must comply with the Constitution, regardless of what the incumbent

President dictates, and this request plainly fails to do so.

Indeed, there is nothing reasonable about the scope of the Committee’s

request, which lacks specificity by any measure and seeks every presidential

record and communication that could tenuously relate to events that

occurred on January 6, 2020, in Washington, D.C. Even worse, in some

instances there is no reasonable connection between the records requested

and the events of January 6th. For example, the request asks for “[a]ll

documents and communications within the White House on January 6, 2021,

relating in any way to . . . the January 6, 2021 rally . . . Donald J. Trump” and

over thirty other individuals and government agencies. JA 35. Indeed, the

request could reasonably be read to include every single e-mail or document

created, sent, or received in the White House on that day. Thus, the second

Mazars factors weighs against finding that the request has a valid legislative

purpose.

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

by Congress to establish that a [request] advances a valid legislative

purpose.” Mazars, 140 S. Ct. at 2036. “[U]nless Congress adequately

identifies its aims and explains why the President’s information will advance

its consideration of possible legislation,” “it is impossible to conclude that a

[request] is designed to advance a valid legislative purpose.” Id. The

Committee has provided no evidence to establish that its request advances

a legitimate legislative purpose. Indeed, House Resolution 503 generally

permits the Committee to investigate intelligence community and law

enforcement activities surrounding January 6th but is silent regarding the

records and materials of the Executive Office of the President. The lack of

evidence establishing that the Committee’s overbroad request serves some

legitimate legislative goal dooms the request and weighs in favor of granting

a preliminary injunction here.” Id. (citing Watkins, 354 U.S. at 201, 205).

Fourth, courts should “assess the burdens imposed on the President

by [the request]” because “[the burdens] stem from a rival political branch

that has an ongoing relationship with the President and incentives to use

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[requests] for institutional advantage.” Id. As discussed above, the number

of records encompassed by the Committee’s overbroad request is

staggering. Further, the limited time-period to review potentially responsive

documents adds to the burden of the request. The Committee must narrow

its request significantly or the burden on President Trump in reviewing all

potentially responsive documents within the period provided by the PRA

will be substantial. The request also burdens the presidency generally in the

sense that if Congress is permitted to issue such sweeping requests, every

President’s close aides will fear disclosure and thus provide less than candid

advice. “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. This chilling effect will

harm every President. Permitting these types of requests will also burden

every former President going forward, as partisans in Congress will seek to

relitigate past grievances perpetually. Thus, this factor weighs in favor of

granting a preliminary injunction in this instance.

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Even under the “Mazars lite” test, fashioned by the district court to

consider a subpoena’s effect on a President no longer in office, the request at

issue here is invalid. See generally Trump v. Mazars USA LLP, 2021 WL

3602683 (D.D.C. Aug. 11, 2021). There, the court held that even when dealing

with requests for documents related to a non-incumbent President, Congress

must still show how the requested documents will “uniquely advance its

legislative objectives.” Id. at 16. An “undeniably broad” records request like

the one at issue here will still be invalid. Id. at *17. “The more Congress can

invade the personal sphere of a former President, the greater the leverage

Congress would have on a sitting President.” Id. (citing Mazars, 140 S. Ct. at

2036).

While President Trump does not endorse the Mazars lite test, the

court’s rationale in its recent decision supports finding the incredibly broad

request in this case constitutionally defective. The Committee has failed to

explain how the requested materials would uniquely advance its legislative

objectives, and the request is wide-ranging and broader than any

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congressional request in modern history. Thus, the request fails even the

Mazars lite test.

Finally, before the district court, the Committee claimed that its

investigation may yield recommendations as to whether and how Congress

should pass legislation to revise the mechanics of the electoral counting and

other potential legislation. But the Committee fails to explain how “the

President’s information will advance its consideration of [any] possible

legislation.” Mazars, 140 S. Ct. at 2035. There is no reason why Congress

would need the sheer level of detail about the President’s or his close

advisors’ daily activities that the request demands just to enact legislation

regarding how Congress counts electoral votes. The Committee has also

claimed that Congress may wish to enhance the legal consequences for any

dereliction of duty by a President. But Congress can already pass such

legislation today, without the requested information, and is not permitted to

investigate the President as a “case study” for general legislation. Mazars,

140 S. Ct. at 2035. Further, many of the Committee’s requests seek records

that do not involve the President or the disputed events of January 6 at all.

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c. The Committee Lacks Express Authority by Congress to Issue


this Request

The district court never addressed President Trump’s argument that

Congress has not authorized the Committee to issue requests for a former

President’s presidential records. This argument alone provides a basis to

invalidate the Committee’s request. “Congressional committees are

themselves the offspring of Congress; they have only those powers

authorized by law; they do not have an unlimited roving commission merely

by virtue of their creation and existence to ferret out evil or to uncover

inequity.” In re Beef Indus. Antitrust Litig., 589 F.2d 786, 787-88 (5th Cir. 1979).

Hence, congressional committees “must conform strictly to the resolution

establishing [their] investigatory powers” for a request to be statutorily

valid. Exxon Corp. v. FTC, 589 F.2d 582, 592 (D.C. Cir. 1978); see also Watkins,

354 U.S. at 201.

H. Res. 503 does not permit the Committee to request presidential

records; it never even mentions the President, the EOP, presidential records,

any advisors to the President, or the Archivist. JA 92-105. The absence of an

express statement authorizing or even contemplating the Committee’s

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request here should be decisive. “The theory of a committee inquiry is that

the committee members are serving as the representatives of the parent

assembly in collecting information for a legislative purpose.” Watkins, 354

U.S. at 200. Congress 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. Nothing authorizes the Committee’s

sweeping request here, and it should be invalidated.

d. The Request Violates the PRA and Associated Regulations

Chairman Thompson’s request runs afoul of the statutory and

regulatory requirements for a congressional records request under the

Presidential Records Act, which mirror the constitutional requirements.

Presidential records “shall be made available . . . (C) to either House of

Congress, or, to the extent . . . within its jurisdiction, to any committee or

subcommittee thereof if such records contain information…needed for the

conduct of its business and…not otherwise available.” 44 U.S.C. § 2205(2)(C)

(emphasis added). The regulations governing NARA have the same

requirements. 36 C.F.R. § 1270.44 (2002).

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In adopting the Presidential Records Act, Congress put limits on its

own authority to obtain presidential records. 44 U.S.C. § 2205(2)(C). That

provision specifically limits presidential record requests to information

“needed for the conduct of [congressional or committee] business and that

is not otherwise available.” Id.3 Of course, Congress also specifically

recognized a former President’s standing to challenge such a records

request. 44 U.S.C. § 2204(e). The district court, however, skipped over this

analysis and failed to determine whether the records requests satisfied the

PRA. Consequently, even if the Committee’s request did not offend the

separation of powers concerns underlying Mazars, it failed to satisfy the

statutory limitations in the PRA and its associated regulations.

e. The Requested Documents are Privileged

Legal privileges protect the requested records and thus should not be

produced to the Committee. President Trump has already reviewed and

identified a handful of documents allegedly responsive to the Committee’s

3
36 C.F.R. § 1270.44 (2002) contains an identical limitation on such
requests.
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request in the first three sets of documents provided by the Archivist and

clearly protected by the presidential communications privilege, among

others. But President Biden is attempting to waive the executive privilege of

his predecessor, without any legal basis for doing so. Indeed, the Biden

Administration does not even attempt to argue that President Trump

improperly designated the records at issue as being protected by executive

privilege. Additionally, while the executive privilege is qualified, it can only

be invaded pursuant to a demonstrated and specific showing of need, not a

broad and limitless waiver, executed pursuant to political calculations. See

Nixon, 418 U.S. at 713. Importantly, the incumbent President’s duties under

the Constitution, the PRA, and its associated regulations are limited to

disputes whether the former President validly asserted executive privilege.

“The presidential communications privilege . . . extends ‘beyond

communications directly involving and documents actually viewed by the

President, to the communications and documents of the President’s

immediate White House advisors and their staffs,’” i.e., documents

“‘solicited and received’ by the President or his immediate White House

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advisors who have ‘broad and significant responsibility for investigating

and formulating the advice to be given the President.’” Judicial Watch, Inc. v.

Dept. of Justice, 365 F.3d 1108, 1114 (D.C. Cir. 2004) (quoting In re Sealed Case,

121 F.3d 729, 742 (D.C. Cir. 1997)). “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.

Executive privilege survives a President’s term of office. GSA, 433 U.S.

at 439 (holding that a former President has standing to assert executive

privilege). The confidentiality necessary to ensure full and frank advice

cannot be measured by “a few months or years between the submission of

the information and the end of the President’s tenure.” Id. at 449. Here,

President Trump’s term of office expired less than a year ago. A dispute

between incumbent and former Presidents regarding the privileged nature

of the latter’s presidential records is subject to judicial review. See GSA, at

39; 44 U.S.C. § 2204(e).

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It is important to note that President Trump’s invocation of privilege

can be upheld on the basis of GSA, alone, in which the Supreme Court

confirmed that a former President retains executive privilege at least with

respect to confidential communications, and that he can assert that privilege

in court even over the objections of the incumbent President. 433 U.S. at 447–

49 (adopting the Solicitor General's view that executive privilege “is not for

the benefit of the President as an individual, but for the benefit of the

Republic [, and t]herefore the privilege survives the individual President's

tenure”).

In deciding whether to uphold a former President’s assertion of

privilege, the Supreme Court has placed a premium on the question of

whether the records at issue would remain protected from public disclosure.

In Nixon, the Court allowed the records at issue to be reviewed in camera by

a district court. 418 U.S. at 706. Likewise, in GSA the Court allowed records

to be produced to an archivist, pursuant to a statutory scheme that was the

precursor to the PRA, only when the records were subject to access

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restrictions established to ensure that executive confidentiality would be

maintained. GSA, 433 U.S. at 450-51.

When the PRA gives the former President the right to uphold or not

uphold a claim of executive privilege, it mirrors GSA’s articulation of what

a former President can and cannot do. A former president retains the right

to assert the presidential communications privilege, but not the state secrets

form of executive privilege. See GSA, 433 U.S. at 447–49 (noting President

Nixon's concession that former Presidents may not assert the state-

secrets privilege). The reason for this distinction is straightforward—the

former president is likely best situated to know if disclosure of documents

from his tenure will harm the public interest, while the incumbent president

is more likely to know which state secrets need to be protected.

The incumbent is also poorly suited to resolve the dispute. Quoting

James Madison, the Supreme Court has been clear: “No man is allowed to

be a judge in his own cause.” Guitierrez de Martinez v. Lamagno, 515 U.S. 417,

428 (1995) (quoting The Federalist No. 10,p. 79 (C. Rossiter ed. 1961) (J.

Madison)). Yet, absent judicial review on a document-by-document basis,

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this dispute will be determined by a party rather than a neutral arbiter. Each

record in dispute raises its own unique constitutional question. The Court

cannot abdicate its role in resolving this dispute by deferring to the

incumbent’s unfettered discretion.

The district court boldly asserts that the records at issue are not

privileged. JA 209. Not even the Executive Branch Appellees made such a

claim. The documents were created during President Trump’s term of office

and reflect presidential decisionmaking, deliberations, and communications

among close advisors, attorneys, and the President. There is no question that

the records at issue reflect presidential communications and the deliberative

process of Presidential advisers. They are presumptively privileged.

Binding precedent confirms President Trump may assert executive

privilege and other privileges over materials requested by Congress. See

GSA, 433 U.S. at 449 (1977). The “privilege survives the individual

President's tenure.” GSA, 433 U.S. at 439. “[T]he remaining separation of

powers concern at issue [with former Presidents] involves the threat of a

post-presidency congressional subpoena for personal information in order

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to influence ‘how the sitting President treats Congress while in office.’”

Mazars, 2021 WL 3602683, at *17. President Trump is entitled to withhold

the records at issue from production to the Committee pursuant to executive

privilege.

The district court erred by ignoring the plain statements in GSA that

President Trump possesses the right to be heard on his executive privilege

claims. See GSA, 433 U.S. at 439. The Supreme Court in GSA has made clear

that executive privilege survives the President’s term of office, which

benefits our Republic. Id. This Court should refuse to ignore GSA’s

straightforward holding and find that President Trump can assert executive

privilege here.

Oddly, the lower court relied on Dellums v. Powell, 561 F.2d 242, 247

(D.C. Cir. 1977), a case that was decided before GSA, to reach its decision.

This reliance was error. And the lower court’s claim that its reading of the

PRA to give incumbent presidents unilateral power over executive privilege

decisions is consistent with GSA, is stunning. GSA plainly contemplates that

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all presidents have the power to exert executive privilege. Thus, the district

court’s decision should be reversed.

f. The rule advocated by Appellees and adopted by the district


court would undermine the separation of powers and eviscerate
executive privilege.

The district court held that “Presidents are not kings.” JA 194. True,

but in that same vein, Congress is not Parliament—a legislative body with

supreme and unchecked constitutional power over the operations of

government. See Dep’t of Transp. v. Ass’n of Am. Railroads, 575 U.S. 43, 74-75

(2015) (discussing the founders’ rejection of parliamentary supremacy in

favor of requiring that Congress must be subject to law); Mazars, 140 S. Ct.

at 2045 (Thomas, J., dissenting). The founders chose to restrain

congressional authority to specifically delineated powers. U.S. CONST.

Art. 1, § 1, cl. 1. If the Committee’s request is upheld, there would be no

limitation on the presidential records Congress could review. In Mazars,

the Supreme Court squarely rejected the argument that Congress has

unfettered discretion to seek presidential records and limited Congress’s

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authority to inquiries that serve a valid legislative purpose. Mazars, 140

S. Ct. at 2034–35.

Here, Congress argued, and the district court found, that the only

limiting principle required is that legislation could theoretically be had

on the issues of safety and election integrity. JA 204. The district court’s

finding is inapposite to the Supreme Court’s holding in Mazars. 140 S.

Ct. at 2034. Notwithstanding controlling precedent, if this Court accepts

the Defendant’s arguments, and the district court’s finding, that

congressional investigatory authority is limited only where legislation

could not be theoretically had, Congress could review any and every

document from any executive or judicial office or officer at any time.

Likewise, under the district court’s “theoretical” test Congress

could obtain information from any corner of the federal government to

investigate past or present federal spending or future funding decisions

for any part of the federal government. For example, administrative

agencies are creations of Congress, giving Congress purview of legislative

modification to any facet of the agencies. In the same way any of the district

and circuit courts fall squarely into Congress’s legislative purview. U.S.

CONST. art. III, § 1 (“The Judicial Power of the United States, shall be vested

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in one supreme Court, and in such inferior courts as the Congress may from

time to time establish.”). Even the documents of the Supreme Court could

fall within these bounds if Congress could theoretically use them to

determine, for example, whether to limit the bounds of lower federal court

jurisdiction to expand the bounds—and workload—of the Supreme Court.

Adopting the district court’s novel rule would allow Congress to give

itself the power to investigate and undermine the authority of both the

Executive Branch and Judicial Branch of the federal government. This would

upend any notion of separate and co-equal branches of government. Further,

the “theoretical” test would allow Congress, the most political branch,

unfettered access to presidential records whenever the same party is in

control of the Executive and Legislative branches. This would undoubtedly

gut the executive privilege. If every aide to the President must be concerned

about their advice becoming public record, the very purpose of the executive

privilege would be destroyed.

More specifically, the Committee’s rationale would destroy the

traditional limitations on Congress’s ability to request documents especially

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under the PRA. Under their test, Congress would be able to gather up almost

any document in existence that references any part of the government or that

is regulated by Congress or, logically at its broadest, could be regulated by

Congress. When combined with Congress’s Spending Powers and the fact

congressional legislation is required to authorize and appropriate every

single federal dollar spent—or that might or could be spent—by any branch or

department or agency or office of the federal government, there is virtually,

if not literally, nothing under the sun that Congress could not request by the

Committee’s and the lower court’s standard. In this age, there is essentially

no document that does not directly, let alone tangentially, relate to the

functioning of, or is under the regulation of or could be under the regulation

of, or is spent by or funded by or could be spent or funded by, some part of

the federal government. There would be no judicially manageable standard

for removing anything from the purview of Congressional review and

investigation.

This is particularly relevant to the Committee’s overbroad requests at

issue here. The Committee has admitted that their request is overbroad,

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albeit only after the Court admonished them directly for their “unbelievably

overbroad” requests including documents pertaining to President Trump’s

Campaign reaching back to April of 2020. JA 257. Instead of limiting or

withdrawing these overly broad requests, however, the Committee is

relying on the courts to blue-pencil them into compliance. That is an

invitation that should be flatly rejected by the Court.

Should Congress be allowed to serve overly broad requests for

presidential records knowing that the courts will use their discretion to limit

the requests after the fact, and only after litigation has commenced, then it

will be incentivized to continue making increasingly broad requests,

knowing that it can rely on the courts to limit them (or not) later. Instead, the

Constitution requires that congressional requests be limited to a specific

legislative purpose from the start. Mazars, 140 S. Ct. at 2036.

The result of adopting the district court’s analysis is more than a

hypothetical parade of horribles; it will have a direct and immediate impact

on the advice given to presidents, from President Biden and all those that

follow him. Indeed, these concerns are at the very heart of the President’s

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executive privilege. For instance, the requests seek records of political

records going back to April 2020, during the height of the first wave of the

COVID-19 pandemic. A President’s need to receive full, frank, and

confidential advice from his advisers is at its apex during times of crisis, like

a worldwide pandemic.

Further, the requests include records of all White House

communications on January 6th related in any way to, among an array of

others, Donald J. Trump. JA 34-44. Of course, any request for White House

records in any way relating to the sitting President of the United States is the

very definition of overbreadth; inevitably it will make every communication

sent or received that day responsive, regardless of whether it concerned his

speech at the Ellipse or complex and sensitive matters of foreign affairs.

In all, there are over 60 individual requests contained in the

Committee’s request, not including subparts. The Appellees do not (and

cannot) assert that they are narrowly tailored. Instead, they are as broad as

they are supercilious. If this Court were to accept the rationale of the district

court, it would lead to the erosion and eventual destruction both of the

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separation of powers concerns underlying Mazars and executive privilege.

In their place, Congress would be vested with an unprecedented—and

unconstitutional—power of inquisition.

g. Allowing an Incumbent President Carte Blanche Authority to


Waive the Privilege of his Predecessor Would Render the PRA
Unconstitutional

If the PRA is read to allow an incumbent President unfettered

discretion to waive former Presidents’ executive privilege, it would render

the law unconstitutional. Executive privilege is rooted in the Constitution

and “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 Nixon, 418 U.S. at 708). If

the incumbent President could waive the full extent of the constitutionally

based executive privilege without judicial review, every President, cabinet

official, and advisor would be hamstrung by the knowledge that a

subsequent President from a rival political party could simply waive

privilege and expose confidential executive communications to the world.

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Indeed, Congress specifically recognized that nothing in the PRA

“shall be construed to confirm, limit, or expand any constitutionally-based

privilege which may be available to an incumbent or former President.” 44

U.S.C. § 2204(c)(2).

II. Irreparable Harm

Both Congress and the Supreme Court have specifically recognized the

rights of former Presidents to challenge the production of privileged

presidential records. See 44 U.S.C. § 2204; GSA, 433 U.S. at 439. The executive

branch also recognized that right to bring such an action through the

promulgation of regulations. 36 C.F.R. § 1270.44. The Supreme Court

specifically held that former Presidents have rights to assert executive

privilege. GSA, 433 U.S. at 439. In other words, all three branches have

spoken clearly, a former President may challenge an invasion of executive

privilege and the release of his presidential records. The district court’s

finding that President Trump lacked irreparable harm is simply a backdoor

attempt to negate this clear right and recognized cause of action. Because

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Appellees seek to invade that right rooted by statute and the Constitution,

Appellant will be irreparably harmed, absent an injunction.

Moreover, the district court was legally incorrect when it suggested

that President Trump’s standing was no greater than an ordinary citizen. JA

190 (holding that executive privilege “can neither be claimed nor waived by

a private party.” JA 190 (citing United States v. Reynolds, 345 U.S. 1, 7 (1953)).

Instead, he is one of only five living Americans who, as former Presidents,

are entrusted with protecting the records and communications created

during their term of office. The Supreme Court, the Presidential Records Act,

its associated regulations, and Executive Order 13489 are clear: a former

President is not merely a “private party.” Instead, he 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.

Moreover, the district court’s contention that “it is not this court’s role

to decide whether Congress is motivated to aid legislation or to exact

political retribution” is plainly wrong. JA 202. This political clash is likely

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why the Supreme Court provided former Presidents a right to assert

executive privilege. Congress’s motivations are at the heart of the test

developed in Mazars. They are precisely why GSA, 433 U.S at 449, grants the

former President the “right to be heard,” and why the PRA allows former

Presidents a judicial remedy. 44 U.S.C. § 2204; see also 36 C.F.R. § 1270.44

(stating the Archivist discloses records after incumbent denial of the

privilege only if no court order is issued). The court cannot be so cavalier in

shirking its responsibility and abrogating the law.

Certainly, the disclosure of the documents themselves also constitutes

irreparable harm. If the Court does not intervene, the Archivist could give

the Committee confidential, privileged information. Once disclosed, the

information loses its confidential and privileged nature. See Council on

American-Islamic Relations v. Gaubatz, 667 F. Supp. 2d 67, 76 (D.D.C. 2009). If

such material is disclosed before President Trump has had a proper

opportunity for appellate review, “the very right sought to be protected has

been destroyed.” In re Sealed Case No. 98-3077, 151 F.3d 1059, 1065 (D.C. Cir.

1998) (quoting In re Ford Motor Co., 110 F.3d 954, 963 (3d Cir. 1997)); see also

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Providence Journal Co. v. FBI, 595 F.2d 889, 890 (1st Cir. 1979) (“Once the

documents are surrendered,” in other words, “confidentiality will be lost for

all time. The status quo could never be restored.”); PepsiCo, Inc. v. Redmond,

1996 WL 3965, at *30 (N.D. Ill. 1996) (“[J]ust as it is impossible to unring a

bell, once disclosed, . . . confidential information lose[s] [its] secrecy

forever”); Metro. Life Ins. Co. v. Usery, 426 F. Supp. 150, 172 (D.D.C. 1976)

(“Once disclosed, such information would lose its confidentiality forever.”).

President Trump personally relied on the expectation of executive

confidentiality while in office, the time when the communications and

records at issue were created. The attempted destruction of those rights by

Defendants is personal to him. Moreover, the incumbent President, who

lacks context and information concerning the documents in question, cannot

fairly evaluate President Trump’s rights.

III. Balance of Equities and Public Interest

The balance of equities and public interest also favor granting

President Trump’s Motion. “These factors merge when the Government is

the opposing party.” Nken v. Holder, 556 U.S. 418, 435 (2009). Initially, it is

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always equitable and in the public interest to enforce the Constitution.

Gordon v. Holder, 721 F.3d 638, 653 (2013). The D.C. Circuit “has clearly

articulated that the public has an interest in the government maintaining

procedures that comply with constitutional requirements.” Ass’n of Cmty.

Orgs. for Reform Now (ACORN) v. FEMA, 463 F. Supp. 2d 26, 36 (D.D.C. 2006)

(citing O’Donnell Const. Co. v. Dist. of Columbia, 963 F.2d 420, 429 (D.C. Cir.

1992)). The Constitution entrusts the courts to determine whether the

Committee has exceeded its constitutional authority. Denying President

Trump’s Motion would “abdicate the responsibility placed by the

Constitution upon the judiciary to ensure that the Congress” has not acted

illegitimately in issuing this request for privileged information by effectively

denying appeal. Watkins, 354 U.S. at 198–99. Permitting the Committee to

evade judicial review is not in the public interest.

Unlike the irreparable harm President Trump will suffer absent

interim relief, Defendants would suffer no harm by delaying production

while the parties litigate the request’s validity. There will not be another

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Presidential transition for more than three years; Congress has time to allow

the courts to consider this expedited appeal while it continues to legislate.

In addition, the records sought are in the custody and control of NARA

and therefore are being preserved as a matter of law. The Committee’s

“interest in receiving the records immediately” thus “poses no threat of

irreparable harm to them.” Shapiro v. U.S. Dep’t of Justice, 2016 WL 3023980,

at *7 (D.D.C. May 25, 2016). Interim relief only “postpones the moment of

disclosure . . . by whatever period of time may be required” to adjudicate the

merits of President Trump’s claims finally. Providence Journal, 595 F.2d at 890;

see Fund for Animals v. Norton, 281 F. Supp. 2d 209, 222 (D.D.C. 2003)

(rejecting the government’s claim of harm in having its action “delayed for

a short period of time pending resolution of this case on the merits”). 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.

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CONCLUSION

For the foregoing reasons, the decision of the district court should be

reversed, and this matter should be remanded with instructions for the

district court to grant President Trump’s Motion for a Preliminary

Injunction.

Dated: November 16, 2021 Respectfully submitted,

/s/ Jesse R. Binnall


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

Justin R. Clark
ELECTIONS, LLC
1050 Connecticut Avenue, NE,
Suite 500
Washington, D.C. 20036
(202) 987-9944
[email protected]

Counsel for Donald J. Trump

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CERTIFICATE OF COMPLIANCE

Undersigned counsel certifies that this Petition complies with the type-

volume limitation of Federal Rule of Appellate Procedure 5(c)(1) because,

excluding the parts of the Petition exempted by Federal Rule of Appellate

Procedure 32(f) and D.C. Circuit Rule 32(e)(1), it contains 9,557 words.

Undersigned counsel certifies that this Petition complies with the

typeface requirements of Federal Rule of Appellate Procedure 32(a)(5) and

the type-style requirements of Federal Rule of Appellate Procedure 32(a)(6)

because this brief has been prepared in a proportionally spaced typeface

using Microsoft Word in 14-point Palatino Linotype.

Dated: November 16, 2021 Respectfully submitted,

/s/ Jesse R. Binnall


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

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USCA Case #21-5254 Document #1922644 Filed: 11/16/2021 Page 68 of 68

CERTIFICATE OF SERVICE

I certify that a copy of the foregoing was filed with the Clerk of the

Court using the Court’s CM/ECF system, which will send a copy to all

counsel of record.

Dated: November 16, 2021 Respectfully submitted,

/s/ Jesse R. Binnall


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

Counsel for Donald J. Trump

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