Judge Tanya Chutkan denies Trump’s request to block the National Archives from handing over docs to Jan 6 committee, or the committee from receiving them https://t.co/0zvaN8lhFx pic.twitter.com/I6zhf9K9KA
— Mike Sacks (@MikeSacksEsq) November 10, 2021
Nope. Trump filed an interlocutory appeal:Then it’s onto DC Circuit, though if @brianbeutler’s scenario happens, I imagine the full Democratic-dominated court would step in to lift the stay…and then hello SCOTUS Shadow Docket https://t.co/bR3qcN2YRd
— Mike Sacks (@MikeSacksEsq) November 10, 2021
It is incumbent upon me to point out Trump was seeking an injunction (something that never showed up in the reporting, so, my bad) and frankly, since he couldn't get it in the trial court, his odds of getting it in the D.C. Appeals court are zip and none. OTOH, they may issue an injunction just until they hear Trump's argument, with the deadline being Friday. I don't know if Trump has asked the trial court to stay its order, but it seems clear from the opinion (discussed below) the answer would be: "HELL NO!"Trump’s lawyers have filed their notice of appeal to the DC Circuit https://t.co/tzJVBCjiVi pic.twitter.com/VK7rj3TCYU
— Mike Sacks (@MikeSacksEsq) November 10, 2021
Thus, if a party makes no showing of irreparable injury, the court may deny the motion for injunctive relief on that basis alone.
He argues that his power to do so extends beyond his tenure in Office, in perpetuity, and that his assertion of privilege is binding on the current executive branch. Plaintiff also argues that to the extent the PRA constrains his ability to assert executive privilege, the Act is unconstitutional. In the alternative, he contends that when a former President and current President disagree about whether to assert privilege, a court must examine each disputed document and decide whether it is privileged.
Presidential conversations are presumptively privileged, but the privilege is not absolute. Nixon v. GSA, 433 U.S. at 447. It exists for the benefit of the Republic, not any individual, and accordingly, the presumption can be overcome by an appropriate showing of public need by the judicial or legislative branch. See, e.g., Nixon v. GSA, 433 U.S. at 447, 449; Nixon, 418 U.S. at 707; Senate Select Committee on Presidential Campaign Activities v. Nixon (Senate Select Committee), 498 F.2d 725, 730 (D.C. Cir. 1974).
Plaintiff does not acknowledge the deference owed to the incumbent President’s judgment. His position that he may override the express will of the executive branch appears to be premised on the notion that his executive power “exists in perpetuity.” Hearing Tr. at 19:21- 22. But Presidents are not kings, and Plaintiff is not President. He retains the right to assert that his records are privileged, but the incumbent President “is not constitutionally obliged to honor” that assertion.
Plaintiff also retains the right to assert his own personal “rights or privileges,” if any. 44 U.S.C. § 2204; see also Nixon v. GSA, 433 U.S. at 455-83 (analyzing former President Nixon’s assertion of personal rights, including privacy and First Amendment associational rights). Plaintiff, however, does not do so here. He makes conclusory assertions of attorney-client privilege and attorney work product, but he appears to do so as a species of executive privilege. See, e.g., Pl.’s Mot. at 3 (referring indiscriminately to “various privileges,” including “conversations with (or about) foreign leaders, attorney work product, the most sensitive national security secrets, along with a litany of privileged communications among a pool of potentially hundreds of people”); id. at 5 (referring without elaboration to “executive privilege and attorney- client privilege”); id. at 30 (referring to deliberative process privilege and attorney-client privilege in the same discussion relating to “the President”).In any event, Plaintiff does not elaborate on these claims with sufficient detail for this court to assess them, nor would any such claim be convincing, because the records maintained by the Archivist, by definition, only include those records reflecting the “activities, deliberations, decisions, and policies” of the Presidency, 44 U.S.C. § 2203(a), and not private communications. Plaintiff offers no evidence that the records contain anything of a personal nature; in fact, he concedes that the responsive records do not involve private conversations between him and a personal attorney. See Hearing Tr. at 60:21-61:6. The court need not credit Plaintiff’s concern in the abstract.
Plaintiff appears to view the dispute as resulting in some sort of equipoise, and asks the court to act as a tiebreaker, reviewing each disputed record in camera. The court, however, is not best situated to determine executive branch interests, and declines to intrude upon the executive function in this manner. It must presume that the incumbent is best suited to make those decisions on behalf of the executive branch.
Plaintiff argues that the requests at issue here are burdensome because they are “unbelievably broad” and that their breadth is “striking” because they could “be read to include every single e-mail sent in the White House” on January 6. See Pl. Mot. at 21-24. But upon whom is the burden imposed? President Biden has determined that the requests are not so intrusive or burdensome on the Office of the President as to outweigh Congress’ “compelling need in service of its legislative functions.” Pl. Mot., Ex. 4 at 1-2. Unlike the circumstances presented in Mazars, here, the legislative and executive branches are in harmony and agree that the requests are not unduly intrusive, thus extinguishing any lingering concerns about the breadth of the requests.
The court agrees that the stringent balancing test of Senate Select Committee does not apply because, for reasons already stated, the requested records are not privileged. Indeed, at oral argument, Plaintiff’s counsel did not mention this test and instead asserted only that the Mazars four-factor test is appropriate.
Plaintiff fails to show that any irreparable injury is likely to occur. First, to the extent Plaintiff argues that he, as a private citizen, will suffer injury, he has not identified any personal interest that is threatened by the production of Presidential records. He claims no personal interest in the records or the information they contain, and he identifies no cognizable injury to privacy, property, or otherwise that he personally will suffer if the records are produced, much less a harm that is “both certain and great,” id., 787 F.3d at 555, if injunctive relief is denied.
And this is a nice (and necessary) summing up:
For reasons explained above, the court will deny Plaintiff’s request to enjoin Defendants from enforcing or complying with the Select Committee’s August 25, 2021, requests because Plaintiff is unlikely to succeed on the merits of his claims or suffer irreparable harm, and because a balance of the equities and public interest bear against granting his requested relief.
Now, would the 5th Circuit toss these 39 pages aside and declare for Trump because he's Trump? Yeah, probably; the 5th Circuit has some of the biggest bozos in the federal judiciary. Will the D.C. Circuit do that? No. Flat: no. Will they hurry to resolve this case, or freeze it just to please Trump or appear "judicial"? No. That's not the standard. A preliminary injunction should only be granted where the moving party has 1) shown he is likely to succeed on the merits; 2) will suffer irreparable harm otherwise; and 3) the balance of equities tips in his favor. The court has to consider the position of the opposing party, IOW, not just freeze the status quo because there's a deadline on Friday. Lose any one of those three, the injunction cannot go through. The trial court shot down all three. I don't think the D.C. Cir. or the Supremes are going to do the heavy lifting of finding all three exist between now and 6 p.m. Friday.
But stranger things have happened. The Supremes could decide there's enough of a unique question here; then again, they could decide they have enough unique questions, and they don't want this one. Especially since the plaintiff's arguments in the trial court were so weak. The likeliest outcome is the Supremes decline to take it, and the D.C. circuit remands to the trial court for any further proceedings.
Courts can tell Congress they can't receive documents? And Congress will put up with judges and "justices" telling them what they can and can't receive? If I were Congress I'd tell the judges and "justices" they and whose army are going to keep them from receiving them.
ReplyDeleteI should have included that I've become in favor of the Congress enforcing their own subpoenas. Maybe they can contract with the people who put babies on floors with mylar blankets for those detained for being in contempt. I'd love to see Miller and Bannon sleeping on a concrete floor with nothing but a little mylar blanket, not to mention the rest of them.
ReplyDelete