USCA Case #21-5254 Document #1926128 Filed: 12/09/2021 Page 1 of 68
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`
`United States Court of Appeals
`FOR THE DISTRICT OF COLUMBIA CIRCUIT
`
`
`
`Argued November 30, 2021
`
`
`Decided December 9, 2021
`
`No. 21-5254
`
`DONALD J. TRUMP, IN HIS CAPACITY AS THE 45TH PRESIDENT
`OF THE UNITED STATES,
`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, ET AL.,
`APPELLEES
`
`
`Appeal from the United States District Court
`for the District of Columbia
`(No. 1:21-cv-02769)
`
`
`Jesse R. Binnall and Justin R. Clark argued the cause
`and filed the briefs for appellant.
`
`
`Douglas N. Letter, General Counsel, U.S. House of
`Representatives, argued the cause for appellees Bennie
`Thompson and the United States House Select Committee to
`Investigate the January 6th Attack on the United States Capitol.
`With him on the brief were Todd B. Tatelman, Principal Deputy
`General Counsel, Stacie M. Fahsel, Associate General
`
`
`
`

`

`USCA Case #21-5254 Document #1926128 Filed: 12/09/2021 Page 2 of 68
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`Counsel, Eric R. Columbus, Special Litigation Counsel, and
`Annie L. Owens, Mary B. McCord, and Joseph W. Mead,
`Institute
`for Constitutional Advocacy and Protection,
`Georgetown University Law Center.
`
`
`Brian M. Boynton, Acting Assistant Attorney General,
`U.S. Department of Justice, argued the cause for appellee
`National Archives and Records Administration. With him on
`the brief were Michael S. Raab and Gerard Sinzdak, Attorneys.
`Mark R. Freeman, Sarah E. Harrington, and Elizabeth J.
`Shapiro, Attorneys, entered appearances.
`
`
`Elizabeth B. Wydra and Brianne J. Gorod were on the
`brief for amici curiae Former Department of Justice Officials
`in support of appellees.
`
`
`Norman L. Eisen was on the brief for amici curiae
`States United Democracy Center and Former Federal, State,
`and Local Officials in support of appellees.
`
`
`Nikhel S. Sus and Conor M. Shaw were on the brief for
`amici curiae Citizens for Responsibility and Ethics in
`Washington and Former White House Attorneys in support of
`appellees.
`
`
`John A. Freedman, Samuel F. Callahan, and Cameron
`Kistler were on the brief for amici curiae Former Members of
`Congress in support of appellees.
`
`
`Kelly B. McClanahan was on the brief for amici curiae
`Government Accountability Project, et al. in support of
`appellees.
`
`
`Before: MILLETT, WILKINS, and JACKSON, Circuit
`Judges.
`
`
`
`

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`USCA Case #21-5254 Document #1926128 Filed: 12/09/2021 Page 3 of 68
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`Opinion for the Court filed by Circuit Judge MILLETT.
`
`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.1 Then-Vice President Pence, Senators, and
`Representatives were all forced to halt their constitutional
`duties and flee the House and Senate chambers for safety.
`
`The House of Representatives subsequently established
`the Select Committee to Investigate the January 6th Attack on
`the United States Capitol, and charged it with investigating and
`reporting on the “facts, circumstances, and causes relating to”
`the January 6th attack on the Capitol, and its “interference with
`the peaceful transfer of power[.]” H.R. Res. 503, 117th Cong.
`§ 3(1) (2021). The House Resolution also tasked the January
`6th Committee with, among other things, making “legislative
`recommendations” and proposing “changes in law, policy,
`procedures, rules, or regulations” both to prevent future acts of
`
`
`1 STAFF REP. OF S. COMM. ON HOMELAND SECURITY &
`GOVERNMENTAL AFFS. & S. COMM. ON RULES & ADMIN., 117TH
`CONG., EXAMINING THE U.S. CAPITOL ATTACK: A REVIEW OF THE
`SECURITY, PLANNING, AND RESPONSE FAILURES ON JANUARY 6, at
`29 (June 8, 2021) (“Capitol Attack Senate Report”); Hearing on
`Health and Wellness of Employees and State of Damages and
`Preservation as a Result of January 6, 2021 Before the Subcomm. on
`the Legis. Branch of the H. Comm. on Appropriations (“House
`Hearing”), 117th Cong., at 1:25:40–1:26:36 (Feb. 24, 2021)
`(statement of J. Brett Blanton, Architect of
`the Capitol),
`https://perma.cc/XS7N-MRG8.
`
`
`
`

`

`USCA Case #21-5254 Document #1926128 Filed: 12/09/2021 Page 4 of 68
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`such violence and to “improve the security posture of the
`United States Capitol Complex[.]” Id. § 4(b)(1), (c)(2).
`
`As relevant here, the January 6th Committee sent a request
`to the Archivist of the United States under the Presidential
`Records Act, 44 U.S.C. § 2205(2)(C), seeking the expeditious
`disclosure of presidential records pertaining to the events of
`January 6th, the former President’s claims of election fraud in
`the 2020 presidential election, and other related documents.
`
`This preliminary injunction appeal involves only a subset
`of those requested documents over which former President
`Trump has claimed executive privilege, but for which President
`Biden has expressly determined that asserting a claim of
`executive privilege to withhold the documents from the
`January 6th Committee is not warranted. More specifically,
`applying regulations adopted by the Trump Administration,
`President Biden concluded that a claim of executive privilege
`as to the specific documents at issue here is “not in the best
`interests of the United States,” given the “unique and
`extraordinary circumstances” giving rise to the Committee’s
`request, and Congress’s “compelling need” to investigate “an
`unprecedented effort to obstruct the peaceful transfer of power”
`and “the most serious attack on the operations of the Federal
`Government since the Civil War.” Letter from Dana A.
`Remus, Counsel to the President, to David Ferriero, Archivist
`of the United States (Oct. 8, 2021), J.A. 107–108 (“First Remus
`Ltr.”); see also Letter from Dana A. Remus, Counsel to the
`President, to David Ferriero, Archivist of the United States
`(Oct. 8, 2021), J.A. 113 (“Second Remus Ltr.”); Letter from
`Dana A. Remus, Counsel to the President, to David Ferriero,
`Archivist of the United States (Oct. 25, 2021), J.A. 173–174
`(“Third Remus Ltr.”).
`
`
`
`

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`USCA Case #21-5254 Document #1926128 Filed: 12/09/2021 Page 5 of 68
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`The central question in this case is whether, despite the
`exceptional and imperative circumstances underlying the
`Committee’s request and President Biden’s decision, a federal
`court can, at the former President’s behest, override President
`Biden’s decision not to invoke privilege and prevent his release
`to Congress of documents in his possession that he deems to be
`needed for a critical legislative inquiry.
`
`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.
`
`More specifically, the former President has failed to
`establish a likelihood of success given (1) President Biden’s
`carefully reasoned and cabined determination that a claim of
`executive privilege is not in the interests of the United States;
`(2) Congress’s uniquely vital interest in studying the January
`6th attack on itself to formulate remedial legislation and to
`safeguard its constitutional and legislative operations; (3) the
`demonstrated relevance of the documents at issue to the
`congressional inquiry; (4) the absence of any identified
`alternative source for the information; and (5) Mr. Trump’s
`failure even to allege, let alone demonstrate, any particularized
`harm that would arise from disclosure, any distinct and
`superseding interest in confidentiality attached to these
`particular documents, lack of relevance, or any other reasoned
`justification for withholding the documents. Former President
`Trump likewise has failed to establish irreparable harm, and the
`
`
`
`

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`USCA Case #21-5254 Document #1926128 Filed: 12/09/2021 Page 6 of 68
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`balance of interests and equities weigh decisively in favor of
`disclosure.2
`
`For those reasons, we affirm the district court’s judgment
`denying a preliminary injunction as to those documents in the
`Archivist’s first three tranches over which President Biden has
`determined that a claim of executive privilege is not justified.
`
`I
`
`A
`
`On November 3, 2020, Americans elected Joseph Biden
`as President, giving him 306 electoral college votes. Then-
`President Trump, though, refused to concede, claiming that the
`election was “rigged” and characterized by “tremendous voter
`fraud and irregularities[.]” President Donald J. Trump,
`Statement on 2020 Election Results at 0:34–0:46, 18:11–18:15,
`C-SPAN
`(Dec. 2, 2020), https://www.c-span.org/video
`/?506975-1/president-trump-statement-2020-election-results
`(last accessed Dec. 7, 2021). Over the next several weeks,
`President Trump and his allies filed a series of lawsuits
`challenging the results of the election. Current Litigation,
`ABA: STANDING COMM. ON ELECTION LAW (April 30, 2021),
`https://perma.cc/9CRN-2464. The courts rejected every one of
`the substantive claims of voter fraud that was raised. See, e.g.,
`Donald J. Trump
`for President, Inc. v. Secretary of
`Pennsylvania, 830 F. App’x 377, 381 (3d Cir. 2020)
`(“[C]alling an election unfair does not make it so. Charges
`
`
`2 Given former President Trump’s failure to meet his burden,
`we need not decide to what extent a court could, after a sufficient
`showing of congressional need, second guess a sitting President’s
`judgment that invoking privilege is not in the best interests of the
`United States.
`
`
`
`

`

`USCA Case #21-5254 Document #1926128 Filed: 12/09/2021 Page 7 of 68
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`require specific allegations and then proof. We have neither
`here.”).
`
`the
`to
`the Twelfth Amendment
`As required by
`Constitution and the Electoral Count Act, 3 U.S.C. § 15, a Joint
`Session of Congress convened on January 6, 2021 to certify the
`results of the election. 167 CONG. REC. H75–H85 (daily ed.
`Jan. 6, 2021). In anticipation of that event, President Trump
`had sent out a Tweet encouraging his followers to gather for a
`“[b]ig protest in D.C. on January 6th” and to “[b]e there, will
`be wild!” Donald Trump (@realDonaldTrump), TWITTER
`(Dec. 19, 2020, 1:42 AM) (“Statistically impossible to have
`lost the 2020 Election.”).
`
`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. See
`Donald J. Trump, Rally on Electoral College Vote Certification
`at 3:33:05–3:33:10, 3:33:32–3:33:54, 3:37:19–3:37:29, C-
`SPAN (Jan. 6, 2021), https://www.c-span.org/video/?507744-
`1/rally-electoral-college-vote-certification (last accessed Dec.
`7, 2021) (“January 6th Rally Speech”). 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
`
`
`
`

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`USCA Case #21-5254 Document #1926128 Filed: 12/09/2021 Page 8 of 68
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`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. Id. at 28–29;
`Hearing on the Law Enforcement Experience on January 6th
`Before the H. Select Comm. to Investigate the January 6th
`Attack on the U.S. Capitol, 117th Cong., at 2 (July 27, 2021)
`(statement of Sgt. Aquilino A. Gonell, U.S. Capitol Police).
`
`As rioters poured into the building, members of the House
`and Senate, as well as Vice President Pence, were hurriedly
`evacuated from the House and Senate chambers. Capitol
`Attack Senate Report at 25–26. Soon after, rioters breached the
`Senate chamber. Id. In the House chamber, Capitol Police
`officers “barricaded the door with furniture and drew their
`weapons to hold off rioters.” Id. at 26. Some members of the
`mob built a hangman’s gallows on the lawn of the Capitol,
`amid calls from the crowd to hang Vice President Pence.3
`
`
`3 167 CONG. REC. E1133 (daily ed. Oct. 22, 2021) (statement of
`Rep. Sheila Jackson Lee); 167 CONG. REC. H2347 (daily ed. May
`14, 2021) (statement of Rep. Steve Cohen); Peter Baker & Sabrina
`Tavernise, One Legacy of Impeachment: The Most Complete
`
`
`
`
`

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`USCA Case #21-5254 Document #1926128 Filed: 12/09/2021 Page 9 of 68
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`Even with reinforcements from the D.C. National Guard,
`the D.C. Metropolitan Police Department, Virginia State
`Troopers, the Department of Homeland Security, and the FBI,
`Capitol Police were not able to regain control of the building
`and establish a security perimeter for hours. Capitol Attack
`Senate Report at 26. The Joint Session reconvened late that
`night. It was not until 3:42 a.m. on January 7th that Congress
`officially certified Joseph Biden as the winner of the 2020
`presidential election. Id.
`
`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.5 Portions of
`the building’s historic architecture were damaged or destroyed,
`including “precious artwork” and “[s]tatues, murals, historic
`benches and original shutters[.]” House Hearing at 1
`(statement of J. Brett Blanton, Architect of the Capitol).
`
`
`Account So Far of Jan. 6, N.Y. TIMES (Feb. 13, 2021),
`https://perma.cc/2Z47-5XHX.
`
` 4
`
` Jess Bravin, U.S. Capitol Has a History of Occasional
`Violence, but Nothing Like This, WALL ST. J. (Jan. 6, 2021),
`https://perma.cc/TPW2-9CD8; Press Release, Liz Cheney,
`Congresswoman, House of Representatives, A Select Committee Is
`The Only Remaining Option To Thoroughly Investigate January 6th
`(June 30, 2021), https://perma.cc/5RNC-Q6J3.
`
` Baker & Tavernise, note 3, supra.
`
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`USCA Case #21-5254 Document #1926128 Filed: 12/09/2021 Page 10 of 68
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`B
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`the United States House of
`On June 30, 2021,
`Representatives created the Select Committee to Investigate
`the January 6th Attack on the United States Capitol. H.R. Res.
`503. The House directed the Committee to (1) “investigate the
`facts, circumstances, and causes relating to the domestic
`terrorist attack on the Capitol, including * * * influencing
`factors that contributed to” it; (2) “identify, review, and
`evaluate the cause of and the lessons learned” from the attack,
`including “the structure, coordination, operational plans,
`policies, and procedures of the Federal Government, * * *
`particularly with respect to detecting, preventing, preparing for,
`and responding to targeted violence and domestic terrorism”;
`and (3) “issue a final report to the House containing such
`findings, conclusions, and recommendations for corrective
`measures * * * as it may deem necessary.” Id. § 4(a). Those
`“corrective measures” include “changes in law, policy,
`procedures, rules, or regulations” to (1) “prevent future acts of
`violence * * * targeted at American democratic institutions”;
`(2) “improve the security posture of the United States Capitol
`Complex”; and (3) “strengthen the security and resilience” of
`the United States’ “democratic institutions[.]” Id. § 4(c).
`
`The resolution expressly incorporates Rule XI of the Rules
`of the House of Representatives, which empowers the
`Committee “to require, by subpoena or otherwise, the
`attendance and testimony of such witnesses and the production
`of books, records, correspondence, memoranda, papers, and
`documents as it considers necessary,” including from “the
`President, and the Vice President, whether current or former,
`in a personal or official capacity, as well as the White House,
`the Office of the President, the Executive Office of the
`President, and any individual currently or formerly employed
`in the White House, Office of the President, or Executive
`
`
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`

`

`USCA Case #21-5254 Document #1926128 Filed: 12/09/2021 Page 11 of 68
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`Office of the President[.]” Rules of the U.S. House of Reps.
`(117th Cong.) XI.2(m)(1)(B) & (m)(3)(D) (2021); see also
`H.R. Res. § 5(c).
`
`C
`
`On August 25, 2021, pursuant to the Presidential Records
`Act, 44 U.S.C. § 2205(2)(C), the January 6th Committee
`requested that the United States Archivist produce from the
`National Archives documents, communications, videos,
`photographs, and other media generated within the White
`House on January 6, 2021 that relate to the rally on the Ellipse,
`the march to the Capitol, the violence at the Capitol, and the
`activities of President Trump and other high-level Executive
`Branch officials that day. Letter from Bennie G. Thompson,
`Chairman of the January 6th Committee, to David Ferriero,
`Archivist of the United States (Aug. 25, 2021), J.A. 33–44
`(“Thompson Ltr.”). The Committee also asked for calendars
`and schedules documenting meetings or events attended by
`President Trump, White House visitor records, and call logs
`and telephone records from January 6th. J.A. 34–36. In
`addition, the Committee requested records from specified time
`frames in 2020 and 2021 relating to (1) efforts to contest the
`results of the 2020 presidential election, (2) the security of the
`Capitol, (3) the planning of protests, marches, rallies, or
`speeches in D.C. leading up to January 6th, (4) information
`former President Trump received regarding the results of the
`2020 election and his public messaging about those results, and
`(5) the transfer of power from the Trump Administration to the
`Biden Administration. J.A. 36–44.
`
`“Given the urgent nature of [the] request,” the Committee
`asked the Archivist to “expedite [its] consultation and
`processing times pursuant to * * * 36 C.F.R. § 1270.44(g).”
`Thompson Ltr., J.A. 33.
`
`
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`USCA Case #21-5254 Document #1926128 Filed: 12/09/2021 Page 12 of 68
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`On August 30, 2021, as provided by regulation, the
`Archivist notified former President Trump that he had
`identified a first tranche of 136 pages of responsive records that
`he intended to disclose to the January 6th Committee. J.A. 125;
`36 C.F.R. § 1270.44(c).
`
`President Biden was notified of that same planned
`disclosure about a week later.
` J.A. 125; 36 C.F.R.
`§ 1270.44(c). The Archivist later withdrew seven pages from
`disclosure as non-responsive. J.A. 125. On October 8, 2021,
`the former President advised the Archivist that he was asserting
`executive privilege over 46 of those pages. J.A. 110–111, 126.
`The documents subject to Mr. Trump’s assertion of privilege
`involve “daily presidential diaries, schedules, [visitor logs],
`activity logs, [and] call logs, * * * all specifically for or
`encompassing January 6, 2021[,]” “drafts of speeches,
`remarks, and correspondence concerning the events of January
`6, 2021[,]” and “three handwritten notes concerning the events
`of January 6 from [former Chief of Staff Mark] Meadows’
`files[.]” J.A. 129. Former President Trump also made “a
`protective assertion of constitutionally based privilege with
`respect to all additional records” to be produced. J.A. 111.
`
`That same day, Counsel to President Biden informed the
`Archivist that the President had “determined that an assertion
`of executive privilege is not in the best interests of the United
`States, and therefore is not justified as to any of the
`Documents” in the first tranche. First Remus Ltr., J.A. 107; 36
`C.F.R. § 1270.44(d). The letter explained:
`
`[T]he insurrection that took place on January 6, and
`the extraordinary events surrounding it, must be
`subject to a full accounting to ensure nothing similar
`ever happens again. Congress has a compelling need
`in service of its legislative functions to understand the
`
`
`
`

`

`USCA Case #21-5254 Document #1926128 Filed: 12/09/2021 Page 13 of 68
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`circumstances that led to these horrific events. The
`available evidence to date establishes a sufficient
`factual predicate
`for
`the Select Committee’s
`investigation: an unprecedented effort to obstruct the
`peaceful transfer of power, threatening not only the
`safety of Congress and others present at the Capitol,
`but also the principles of democracy enshrined in our
`history and our Constitution. The Documents shed
`light on events within the White House on and about
`January 6 and bear on the Select Committee’s need to
`understand the facts underlying the most serious
`attack on the operations of the Federal Government
`since the Civil War.
`
`These are unique and extraordinary circumstances.
`Congress is examining an assault on our Constitution
`and democratic institutions provoked and fanned by
`those sworn to protect them, and the conduct under
`investigation extends far beyond typical deliberations
`concerning the proper discharge of the President’s
`constitutional responsibilities. The constitutional
`protections of executive privilege should not be used
`to shield, from Congress or the public, information
`that reflects a clear and apparent effort to subvert the
`Constitution itself.
`
`First Remus Ltr., J.A. 107–108.
`
`President Biden specified that his decision “applie[d]
`solely” to the documents in the first tranche. First Remus Ltr.,
`J.A. 108. After President Trump asserted privilege over some
`of the documents, the President advised that, for the reasons
`already given, he would “not uphold the former President’s
`assertion of privilege.” Second Remus Ltr., J.A. 113.
`
`
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`USCA Case #21-5254 Document #1926128 Filed: 12/09/2021 Page 14 of 68
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`Citing “the urgency of the Select Committee’s need for the
`information,” President Biden instructed the Archivist to
`provide the relevant pages to the Committee 30 days after its
`notification to former President Trump. Second Remus Ltr.,
`J.A. 113; see 36 C.F.R. § 1270.44(f)(3), (g). Accordingly, on
`October 13, 2021, the Archivist informed former President
`Trump that, “as instructed by President Biden,” he would
`disclose to the Committee the privileged pages in the first
`tranche on November 12, 2021, “absent any intervening court
`order[.]” J.A. 115; see 36 C.F.R. § 1270.44(f)(3). That same
`day, the Archivist disclosed to the January 6th Committee the
`90 pages from the first tranche for which privilege was not
`claimed. J.A. 126.
`
`On September 9, 2021, the Archivist informed former
`President Trump that he intended to disclose a second tranche
`of 742—later reduced to 739—responsive pages. J.A. 127.
`President Biden was notified shortly thereafter. J.A. 127.
`Counsel to the President later instructed the Archivist to extend
`for one week the review period for the second tranche. J.A.
`127.
`
`On September 16 and 23, 2021, the Archivist notified
`former President Trump and President Biden, respectively, of
`a third tranche of 146 pages. J.A. 127, 130.
`
`Former President Trump subsequently claimed privilege
`over 724 pages in the second and third tranches combined. J.A.
`127, 165–171. Those documents cover “pages from multiple
`binders containing proposed talking points for the Press
`Secretary * * * principally relating to allegations of voter
`fraud, election security, and other topics concerning the 2020
`election[,]” “presidential activity calendars and a related
`handwritten note for January 6, 2021, and for January 2021
`generally,” the “draft text of a presidential speech for the
`
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`USCA Case #21-5254 Document #1926128 Filed: 12/09/2021 Page 15 of 68
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`January 6, 2021, Save America March[,]” “a handwritten note
`from * * * Meadows’ files listing potential or scheduled
`briefings and telephone calls concerning the January 6
`certification and other election issues[,]” and “a draft Executive
`Order on the topic of election integrity[.]” J.A. 130. They also
`include “a memorandum apparently originating outside the
`White House regarding a potential lawsuit by the United States
`against several states President Biden won[,]” “an email chain
`originating from a state official regarding election-related
`issues[,]” “talking points on alleged election irregularities in
`one Michigan county[,]” “a document containing presidential
`findings concerning the security of the 2020 presidential
`election and ordering various actions[,]” and “a draft
`proclamation honoring the Capitol Police and deceased officers
`Brian Sicknick and Howard Liebengood, and related emails[.]”
`J.A. 130–131.
`
`Several days later, President Biden advised the Archivist
`that he would not assert executive privilege to prevent
`disclosure or uphold the former President’s assertion of
`privilege for the identified documents in the second and third
`tranches. The President again concluded that an assertion of
`executive privilege “is not in the best interests of the United
`States,” reiterating his reasoning from the first letter. Third
`Remus Ltr., J.A. 173. Citing “the urgency of the Select
`Committee’s need for the information,” President Biden
`instructed the Archivist to provide the contested pages to the
`Committee 30 days after its notification of former President
`Trump, unless ordered otherwise by a court. Third Remus Ltr.,
`J.A. 174; see 36 C.F.R. § 1270.44(f)(3), (g).
`
`The letter to the Archivist also advised that, “[i]n the
`course of an accommodation process between Congress and the
`Executive Branch,” the Committee had agreed to defer its
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`USCA Case #21-5254 Document #1926128 Filed: 12/09/2021 Page 16 of 68
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`request as to fifty pages of responsive records. J.A. 128; Third
`Remus Ltr., J.A. 174.
`
`On October 27, 2021, the Archivist advised former
`President Trump that he would disclose the 724 pages in the
`second and third tranches for which a claim of privilege had
`been made to the January 6th Committee on November 26,
`2021, “absent any intervening court order.” J.A. 176. The
`Archivist added that he would not provide the documents that
`President Biden and the January 6th Committee had agreed to
`set aside. J.A. 176.
`
`The Archivist’s search for presidential records covered by
`the Committee’s request is ongoing, and it “anticipates
`providing multiple additional notifications * * * on a rolling
`basis as it is able to locate responsive records.” J.A. 129.
`
`D
`
`On October 18, 2021, former President Trump brought suit
`in the United States District Court for the District of Columbia
`to halt the disclosure of documents to the January 6th
`Committee. He filed suit “solely in his official capacity as a
`former President[,]” Compl. ¶ 20, J.A. 16, asserting claims
`under the Presidential Records Act, its regulations, the
`Declaratory Judgment Act, Executive Order No. 13,489, and
`the Constitution. Compl. ¶ 1, J.A. 7. Former President Trump
`argued that the Committee’s request seeks disclosure of records
`protected by executive privilege and lacks a valid legislative
`purpose. Compl. ¶ 38, 49, 50, J.A. 23–24, 28–29. He sought a
`declaratory judgment that the Committee’s request is invalid
`and unenforceable, as well an injunction preventing the
`Committee “from taking any actions to enforce the request[]”
`or “using * * * any information obtained as a result of the
`request[]” and barring the Archivist from “producing the
`requested information[.]” Compl. ¶ 54, J.A. 30–31.
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`USCA Case #21-5254 Document #1926128 Filed: 12/09/2021 Page 17 of 68
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`The next day, Mr. Trump filed a motion for a preliminary
`injunction “prohibiting Defendants
`from enforcing or
`complying with the Committee’s request.” Pl.’s Mot. for
`Prelim. Inj. at 1, D. Ct. Dkt. 5. He argued that he is likely to
`prevail on the ground that the Committee’s request “ha[s] no
`legitimate legislative purpose” and seeks “information that is
`protected by numerous privileges[,]” id. at 2, and that the court
`was required to conduct an in camera review of each assertedly
`privileged document, Pl.’s Reply at 24, D. Ct. Dkt. 33. He also
`contended that “the Republic” and “future Presidential
`administrations” would suffer irreparable harm if the records
`were released. Mem. in Supp. of Pl.’s Mot. for Prelim. Inj. at
`5–6 (“Prelim. Inj. Mem.”), D. Ct. Dkt. 5-1.
`
`The district court denied the motion for a preliminary
`injunction, ruling that former President Trump’s “assertion of
`privilege is outweighed by President Biden’s decision not to
`uphold the privilege,” and declining to “second guess that
`decision by undertaking a document-by-document review[.]”
`J.A. 197. The court also said that the Committee acted within
`its legislative authority because its request involves “multiple
`subjects on which legislation ‘could be had[.]’” J.A. 204
`(quoting McGrain v. Daugherty, 273 U.S. 135, 177 (1927)).
`The court added that the Committee needs the documents to
`understand the “circumstances leading up to January 6[,]” and
`to “identify effective reforms,” and that “President Biden’s
`decision not to assert the privilege alleviates any remaining
`concern that the requests are overly broad.” J.A. 207.
`
`As for irreparable injury, the district court found that the
`former President had not identified any personal interest
`threatened by production of the records, and that his claim that
`disclosure would “gravely undermine the functioning of the
`executive branch” was overtaken by President Biden’s
`determination that the records could safely be released, as well
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`as the long history of past Presidents waiving privilege when it
`was in the interests of the United States to do so. J.A. 212–213.
`Lastly, with respect to the balance of harms and public interest,
`the court concluded that “discovering and coming to terms with
`the causes underlying the January 6 attack is a matter of
`unsurpassed public importance[,]” and that “the public interest
`lies in permitting—not enjoining—the combined will of the
`legislative and executive branches[.]” J.A. 214–215.
`
`The district court subsequently denied Mr. Trump’s request
`for an injunction pending appeal. D. Ct. Dkt. 43.
`
`E
`
`Former President Trump filed an appeal and a motion for
`both an injunction pending appeal and expedited briefing.
`Emergency Mot. for Admin. Inj. (Nov. 11, 2021). That same
`day, this court administratively enjoined the