Donald Trump v. Bennie Thompson (21-5254) CADC - The Trump Records Case

[Effete Snob]

It's worth going beyond the newspaper summaries and reading much of this for yourself.

Trump didn't just lose. This was a blowout.

This court is going to be the first stop up the appeal ladder for Bannon and for Meadows, and so this decision provides a preview of how some of the issues in their cases are going to be decided.

The decision of the DC Court of Appeals is here:

https://www.cadc.uscourts.gov/internet/opinions.nsf/913002F9EFB94590852587A60075CC4F/$file/21-5254-1926128.pdf

MILLETT, Circuit Judge: On January 6, 2021, a mob
professing support for then-President Trump violently attacked
the United States Capitol in an effort to prevent a Joint Session
of Congress from certifying the electoral college votes
designating Joseph R. Biden the 46th President of the United
States. The rampage left multiple people dead, injured more
than 140 people, and inflicted millions of dollars in damage to
the Capitol. Then-Vice President Pence, Senators, and
Representatives were all forced to halt their constitutional
duties and flee the House and Senate chambers for safety.

...

On the record before us, former President Trump has
provided no basis for this court to override President Biden’s
judgment and the agreement and accommodations worked out
between the Political Branches over these documents. Both
Branches agree that there is a unique legislative need for these
documents and that they are directly relevant to the
Committee’s inquiry into an attack on the Legislative Branch
and its constitutional role in the peaceful transfer of power

...

Shortly before noon on January 6th, President Trump took
the stage at a rally of his supporters on the Ellipse, just south
of the White House. J.A. 180. During his more than hour-long
speech, President Trump reiterated his claims that the election
was “rigged” and “stolen,” and urged then-Vice President
Pence, who would preside over the certification, to “do the
right thing” by rejecting various States’ electoral votes and
refusing to certify the election in favor of Mr. Biden.

...

Toward the end of the
speech, President Trump announced to his supporters that
“we’re going to walk down Pennsylvania Avenue * * * to the
Capitol and * * * we’re going to try and give our Republicans
* * * the kind of pride and boldness that they need to take back
our country.” Id. at 4:42:00–4:42:32. Urging the crowd to
“demand that Congress do the right thing and only count the
electors who have been lawfully slated[,]” he warned that
“you’ll never take back our country with weakness” and
declared “[w]e fight like hell and if you don’t fight like hell,
you’re not going to have a country anymore.” Id. at 3:47:20–
3:47:42, 4:41:17–4:41:33.


Shortly after the speech, a large crowd of President
Trump’s supporters—including some armed with weapons and
wearing full tactical gear—marched to the Capitol and
violently broke into the building to try and prevent Congress’s
certification of the election results. See Capitol Attack Senate
Report at 23, 27–29. The mob quickly overwhelmed law
enforcement and scaled walls, smashed through barricades, and
shattered windows to gain access to the interior of the Capitol.
Id. at 24–25. Police officers were attacked with chemical
agents, beaten with flag poles and frozen water bottles, and
crushed between doors and throngs of rioters.

...

The events of January 6, 2021 marked the most significant
assault on the Capitol since the War of 1812.4
The building
was desecrated, blood was shed, and several individuals lost
their lives. See Capitol Attack Senate Report at 27–29.
Approximately 140 law enforcement officers were injured, and
one officer who had been attacked died the next day. Id. at 29.
In the aftermath, workers labored to sweep up broken glass,
wipe away blood, and clean feces off the walls. Portions of
the building’s historic architecture were damaged or destroyed,
including “precious artwork” and “[s]tatues, murals, historic
benches and original shutters[.]”

...

So for 24 years of the Presidential Records Act’s operation
and across five different presidencies, Presidents, including
former President Trump, have agreed that the disclosure
decision of an incumbent President controls within the
Executive Branch over the contrary claim of a former
President. And all Presidents have agreed that the Constitution
does not obligate an incumbent President or court to uphold the
views of a former President. See Burke, 843 F.2d at 1479.

...

To be sure, former President Trump has important insight
on the value of preserving the confidentiality of records created
during his administration. But it is only President Biden who
can make a fully informed and circumspect assessment of all
the competing needs and interests of the Executive Branch.
These might include (to name just a few) the current and
prospective threats to democratic institutions and the electoral
process, intelligence on domestic extremists, the full panoply
of competing privilege claims and disputes between the
Executive Branch and Congress, the sensitive status of
interbranch relations at multiple levels, and the costs and
benefits of a privilege battle or disclosure at the time the matter
arises.


...

That is all he offers. And that is not close to enough.
When a former and incumbent President disagree about the
need to preserve the confidentiality of presidential
communications, the incumbent’s judgment warrants
deference because it is the incumbent who is “vitally concerned
with and in the best position to assess the present and future
needs of the Executive Branch[.]” Nixon v. GSA, 433 U.S. at
449. Mr. Trump’s disagreement with President Biden’s
judgment, by itself, provides the court no basis to override the
sitting President’s judgment.


...

The former President’s remaining arguments do not help
his case.

He argues that the Committee has not been authorized by
the full House to request a former President’s records. See
Appellant Opening Br. 32–33. That is wrong.

...

Benjamin Franklin said, at the founding, that we have “[a]
Republic”—“if [we] can keep it.”19
The events of January 6th
exposed the fragility of those democratic institutions and
traditions that we had perhaps come to take for granted. In
response, the President of the United States and Congress have
each made the judgment that access to this subset of
presidential communication records is necessary to address a
matter of great constitutional moment for the Republic. Former
President Trump has given this court no legal reason to cast
aside President Biden’s assessment of the Executive Branch
interests at stake, or to create a separation of powers conflict
that the Political Branches have avoided.
The judgment of the district court denying a preliminary
injunction is affirmed.

[onethatcares]

1. thank you for posting this.

K & R