Trump Team Opening Brief On Appeal For Jan 6 Records
Trump Team Opening Brief On Appeal For Jan 6 Records
Trump Team Opening Brief On Appeal For Jan 6 Records
Plaintiff-Appellant,
v.
Defendant-Appellees.
_______________________
CERTIFICATE AS TO PARTIES,
RULINGS, AND RELATED CASE
order that the judges of this Court may evaluate possible disqualification or
recusal.
The parties that appeared before the district court and that are before
1. Plaintiff-Appellant
Current Attorneys:
Jesse R. Binnall
Binnall Law Group, PLLC
717 King Street, Suite 200
Alexandria, Virginia 22314
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Justin R. Clark
Elections, LLC
1050 Connecticut Ave NE, Suite 500
Washington, DC 20036
Former Attorneys:
None.
3. Defendants-Appellees
Bennie G. Thompson
David S. Ferriero
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
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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.
Anne H. Tindall
Cameron Kistler
Erica Newland
John Langford
United To Protect Democracy
2020 Pennsylvania Ave. NW, #163
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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
The ruling under review is the Order of the U.S. District Court for the
C. Related Cases
The case now pending before this Court was previously before the
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any other related case pending before this Court or any court.
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TABLE OF CONTENTS
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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
Doe v. Mattis,
928 F.3d 1, 7 (D.C. Cir. 2019) ........................................................................... 16
Gordon v. Holder,
721 F.3d 638, 653 (2013) ................................................................................... 52
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In re Sealed Case,
121 F.3d 729, 742 (D.C. Cir. 1997) ................................................................... 36
Kilbourn v. Thompson,
103 U.S. 168, 182–89 (1880) .............................................................................. 19
Nken v. Holder,
556 U.S. 418, 435 (2009) .................................................................................... 51
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Statutes
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
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U.S. Constitution
___________________
* Authorities upon which President Trump chiefly relies are marked with
an asterisk.
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GLOSSARY
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and laws. Appellees and the court below contend that Congress possesses
records on any matter, at any time, for any reason. This unprecedented claim
of powers, and should be rejected. Further, under our Constitution and laws,
claims.
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communication and record created in the White House from April 2020
onward. JA 205. The district court sanctioned this request, which it openly
executive privilege.
Both Appellees and the district court justified this overbroad request
President. The lower court effectively held that the decision of an incumbent
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182 (1880); U.S. CONST. Art. 1, § 1, cl. 1. The law is clear that disagreements
privilege over records created during such former President’s tenure are
The stakes in this case are high. A decision upholding the Committees’
partisan times, Congress will increasingly and inevitably use this new
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
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President Trump timely filed his notice of appeal. JA 217. Accordingly, this
STATEMENT OF ISSUES
prerogative of Congress?
and the laws of the United States and over his assertion of executive
privilege?
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4. Did the district court err when it held that a former President was not
36 C.F.R. §§ 1270.01-1270.50.
States House Select Committee to Investigate the January 6th Attack on the
intimidate and harass President Trump and his closest advisors under the
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Forces surrounding January 6th, and provides that the Committee will issue
Committee from holding the markup of any legislation. Id. at 100. This
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
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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
Issued public statements are one thing, but the notion that Congress is
somehow entitled to ask for and review any and all private conversations,
United States and his close advisors, without limitations on, among other
things, subject matter, would destroy the very fabric of our constitutional
maintain the autonomy and functioning of the Executive Branch. See Trump
v. Mazars USA, LLP, 140 S. Ct. 2019, 2032 (2020) (“[Executive] privilege
(quoting United States v. Nixon, 418 U.S. 683, 708 (1974)). The Committee has
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Presidential Records Act (44 U.S.C. § 2205(2)(C)),” see JA 33. The Presidential
records of Presidents and Vice Presidents. The Archivist and the National
other duties, after the President leaves office. See generally 44 U.S.C. §§ 2202–
2208.
exceed twelve years after his term, during which access to presidential
Congress, or, to the extent of matter within its jurisdiction, to any committee
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for the conduct of its business and is not otherwise available.” 44 U.S.C.
§ 2205(2)(C).
request for records that were created during that former President’s term of
Id. If, as here, the incumbent President chooses to waive, the Archivist
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.
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allowed under the NARA regulations. Exec. Order No. 13489, 74 Fed. Reg.
On October 8, 2021, the Biden White House notified the Archivist that it
order, President Trump notified the Archivist that he has made a formal
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The Biden White House notified the Archivist that it would not assert
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
“[a]fter consultation with Counsel to the President and the Acting Assistant
court order. Id. at 162-163. Likewise, the Archivist notified President Trump
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
STANDARD OF REVIEW
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
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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
SUMMARY OF ARGUMENT
factors and the specific requirements of the PRA, ignores the expansive
scope of the requests here and wrongly justifies it based upon the improper
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and former President. The court wholly ignored the Supreme Court’s clear
tenure,” Nixon v. Adm’r of Gen. Servs. (“GSA”), 433 U.S. 425, 439 (1977), and
court ruled that the sitting President has the sole power to invoke executive
decision would gut the foundation of executive privilege and hamstring all
officials within the Executive Branch that rely upon the privilege for the
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production, Congress has not and cannot meet its constitutional and
purpose.
should find that the Committee’s requests fail to comply with the
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ARGUMENT
2035, and (b) the request seeks clearly privileged documents and the
Committee lacks a specific need for the requested information, Nixon, 418
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
tips in the party’s favor, and (iv) whether an injunction would serve the
presidents and their advisers to reliably make and receive full and frank
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meet a political objective. This rationale, which is the is the crux of executive
Supreme Court noted that executive privilege exists for the benefit of 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
The Plaintiff also satisfies the other factors of the four-factor test for a
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
The Appellant is likely to succeed on the merits of his claims that the
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framework set forth in the PRA and associated regulations, and (c) seeks
The district court’s opinion puts the cart before the horse by first
dispositive with respect to privilege and then applying the wrong test
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
F.2d 1252, 1259 (D.C. Cir. 1973). A “valid legislative purpose,” articulating a
information requests. Mazars, 140 S. Ct. at 2032 (quoting Nixon, 418 U.S. at
713).
certain kinds of legislation, see, e.g., U.S. CONST. art. I, § 8, and Congress’s
process.” Watkins v. United States, 354 U.S. 178, 197 (1957). Just as
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soundly rejected this argument barely a year ago. Mazars, 140 S. Ct. at 2034
records). The lower court’s claim that “Congress need not . . . identify
identif[y] [its] aims and explain[] why the President’s information will
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
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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
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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cannot seek information “for the sake of exposure.” Watkins, 354 U.S. at 200.
but when Congress seeks the most sensitive, privileged presidential records,
like those requested here, its burden is even heavier, because it is intruding
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Mazars, 140 S. Ct. at 2031–32. In this case, the lower court itself even
opposing counsel similarly admitted that the request was “broad.” JA 257.
favor of granting the requested relief here, given the weighty issues at stake.
realm. Mazars, 140 S. Ct. at 2035. These factors take “adequate account of the
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Id. at 2035.
warrants the significant step of involving the President and his papers.” Id.
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
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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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
system would be undermined without full disclosure of all the facts, efforts
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
and additional, privileged records are not needed for the Committee to
legislate.
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position means that Congress may not look to him as a ‘case study’ for
this rule by admitting that the Committee’s request seeks to “identify lessons
subject. JA 33.
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
Mazars, 140 S. Ct. at 2036. “The specificity of the subpoena's request ‘serves
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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request, which lacks specificity by any measure and seeks every presidential
and the events of January 6th. For example, the request asks for “[a]ll
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
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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identifies its aims and explains why the President’s information will advance
records and materials of the Executive Office of the President. The lack of
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).
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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documents adds to the burden of the request. The Committee must narrow
will be substantial. The request also burdens the presidency generally in the
President’s close aides will fear disclosure and thus provide less than candid
dissemination of their remarks may well temper candor with a concern for
decisionmaking process.” Nixon, 418 U.S. at 705. This chilling effect will
harm every President. Permitting these types of requests will also burden
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Even under the “Mazars lite” test, fashioned by the district court to
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
must still show how the requested documents will “uniquely advance its
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
explain how the requested materials would uniquely advance its legislative
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congressional request in modern history. Thus, the request fails even the
Finally, before the district court, the Committee claimed that its
should pass legislation to revise the mechanics of the electoral counting and
other potential legislation. But the Committee fails to explain how “the
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
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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Congress has not authorized the Committee to issue requests for a former
inequity.” In re Beef Indus. Antitrust Litig., 589 F.2d 786, 787-88 (5th Cir. 1979).
valid. Exxon Corp. v. FTC, 589 F.2d 582, 592 (D.C. Cir. 1978); see also Watkins,
records; it never even mentions the President, the EOP, presidential records,
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U.S. at 200. Congress must “spell out that group’s jurisdiction and purpose
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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
Legal privileges protect the requested records and thus should not be
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
his predecessor, without any legal basis for doing so. Indeed, the Biden
Nixon, 418 U.S. at 713. Importantly, the incumbent President’s duties under
the Constitution, the PRA, and its associated regulations are limited to
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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
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
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can be upheld on the basis of GSA, alone, in which the Supreme Court
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
tenure”).
whether the records at issue would remain protected from public disclosure.
a district court. 418 U.S. at 706. Likewise, in GSA the Court allowed records
precursor to the PRA, only when the records were subject to access
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When the PRA gives the former President the right to uphold or not
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-
from his tenure will harm the public interest, while the incumbent president
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.
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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
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
among close advisors, attorneys, and the President. There is no question that
GSA, 433 U.S. at 449 (1977). The “privilege survives the individual
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privilege.
The district court erred by ignoring the plain statements in GSA that
claims. See GSA, 433 U.S. at 439. The Supreme Court in GSA has made clear
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
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all presidents have the power to exert executive privilege. Thus, the district
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
government. See Dep’t of Transp. v. Ass’n of Am. Railroads, 575 U.S. 43, 74-75
favor of requiring that Congress must be subject to law); Mazars, 140 S. Ct.
the Supreme Court squarely rejected the argument that Congress has
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S. Ct. at 2034–35.
Here, Congress argued, and the district court found, that the only
on the issues of safety and election integrity. JA 204. The district court’s
could not be theoretically had, Congress could review any and every
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
determine, for example, whether to limit the bounds of lower federal 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
the “theoretical” test would allow Congress, the most political branch,
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
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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
Congress. When combined with Congress’s Spending Powers and the fact
single federal dollar spent—or that might or could be spent—by any branch or
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
investigation.
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
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
knowing that it can rely on the courts to limit them (or not) later. Instead, the
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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records going back to April 2020, during the height of the first wave of the
confidential advice from his advisers is at its apex during times of crisis, like
a worldwide pandemic.
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
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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unconstitutional—power of inquisition.
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
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U.S.C. § 2204(c)(2).
Both Congress and the Supreme Court have specifically recognized the
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
privilege. GSA, 433 U.S. at 439. In other words, all three branches have
privilege and the release of his presidential records. The district court’s
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,
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)).
during their term of office. The Supreme Court, the Presidential Records Act,
its associated regulations, and Executive Order 13489 are clear: a former
Moreover, the district court’s contention that “it is not this court’s role
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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
irreparable harm. If the Court does not intervene, the Archivist could give
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
all time. The status quo could never be restored.”); PepsiCo, Inc. v. Redmond,
forever”); Metro. Life Ins. Co. v. Usery, 426 F. Supp. 150, 172 (D.D.C. 1976)
the opposing party.” Nken v. Holder, 556 U.S. 418, 435 (2009). Initially, it is
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Gordon v. Holder, 721 F.3d 638, 653 (2013). The D.C. Circuit “has clearly
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.
Constitution upon the judiciary to ensure that the Congress” has not acted
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
In addition, the records sought are in the custody and control of NARA
at *7 (D.D.C. May 25, 2016). Interim relief only “postpones the moment of
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
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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
Injunction.
Justin R. Clark
ELECTIONS, LLC
1050 Connecticut Avenue, NE,
Suite 500
Washington, D.C. 20036
(202) 987-9944
[email protected]
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CERTIFICATE OF COMPLIANCE
Undersigned counsel certifies that this Petition complies with the type-
Procedure 32(f) and D.C. Circuit Rule 32(e)(1), it contains 9,557 words.
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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.
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