Trump asks appeals court to stop release of his White House records ahead of Friday deadline

[George II]

Source: CNN

(CNN) Former President Donald Trump has asked a federal appeals court to briefly stop the release of key White House records from his presidency to the House January 6 committee while he appeals a lower court's decision that he can't claim executive privilege to keep them secret.

The filing is a last-ditch effort ahead of a Friday 6 p.m. deadline for the House committee investigating the Capitol attack to receive 46 records, including White House call logs, visitor logs, drafts of speeches and three handwritten memos from Trump's then-chief of staff Mark Meadows.

In total, more than 700 documents from Trump's presidency are expected to be turned over by the National Archives to the committee in the coming weeks.

Judge Tanya Chutkan twice rejected Trump's bid for a preliminary injunction to prevent the National Archives from complying with document request, noting in a Wednesday night ruling that Trump's attorneys did not put forward new legal arguments or new facts to alter her previous ruling that held executive privilege belongs to the office -- not the individual.

Read more: https://www.cnn.com/2021/11/11/politics/trump-motion-documents/index.html

[Alexander Of Assyria]

1. Trying to string out the final result not working out so well for Herr and his team

of cracked out lawyers.

Herr has already lost the privilege claims, lost a stay application, then lost another stay application before one federal judge.

Now the fourth round is a stay application in the federal appeals court.

Going to go the full 10 rounds in a flash. Justice is coming with haste, this time.

[cilla4progress]

2. Your lips to

goddesses' ears.

Losing confidence out here...

[bucolic_frolic]

3. This is the Nixon Tapes release moment

[Alexander Of Assyria]

4. Yes, will be before SCOTUS in a week...then we will know if fascism is coming to America.

Although if SCOTUS decides to destroy democracy Biden should release the the records anyway he can…NYT has some fine and confidentiality bound journalists.

[onenote]

6. The documents aren't in Biden's possession

They are in the possession of the Archivist and I doubt that he would break the law by releasing them to anyone.

[SheCat]

18. Not breaking any law

Releasing before the deadline, without a court order in place, is merely responding to the subpoena deuces tecum.

I would not be surprised if they already have them. As far as I know, there is no order stating they must wait for the appeal before they release. Chutkin did not place a temporary hold until the appeals play out. When dick bag was occupying the WH illegally, the lower court judges ruled against him, but put a hold on witneeses and documents until the process played out.

[onenote]

20. Apparently you're unfamiliar with the Presidential Records Act

[SheCat]

21. Great, Explain

Tomorrow is a deadline, not a cannot produce until this time. The first subpoena was acted upon before the deadline. Why is this any different? There is no hold. Deadlines, generally, are meant to provide ample time to comply, not to say you cannot comply until this date and time.

I would love to know more.

[onenote]

29. Here you go.

You are mistaken that tomorrow is a "deadline" and that the Archivist could produce the documents earlier if he wanted to.

It's all spelled out, in excruciating detail, in this Declaration submitted to the Court on behalf of the Archives.https://storage.courtlistener.com/recap/gov.uscourts.dcd.236632/gov.uscourts.dcd.236632.21.1.pdf

The bottom line, clearly stated in Exhibit F, is that "Pursuant to President Biden’s subsequent instruction and my authority under 36 C.F.R. 1270.44(g), I will deliver these pages to the Select Committee in 30 days (on November 12, 2021), absent any intervening court order".

The Archivist is bound by the President's instruction, the regulations implementing the PRA and, not least of all, the express representation to the District Court, relied upon by that Court, that the documents wouldn't be released before November 12. (See Judge Chutkan's November 10, 2021 order denying Trump interim relief, wherein she wrote (in the Conclusion): "nothing in the court’s November 9, 2021, Order, or this Order, triggers the harm he alleges because the Archivist will not submit the requested records to the Select Committee until November 12, 2021, and Plaintiff can seek appellate relief in the interim.

[SheCat]

19. Not breaking any law

Releasing before the deadline, without a court order in place, is merely responding to the subpoena deuces tecum.

I would not be surprised if they already have them. As far as I know, there is no order stating they must wait for the appeal before they release. Chutkin did not place a temporary hold until the appeals play out. When dick bag was occupying the WH illegally, the lower court judges ruled against him, but put a hold on witneeses and documents until the process played out.

[agingdem]

7. Trump's judges owe him nothing...

they have lifetime appointments...granted their whites-only evangelical and beer soaked ideology is pretty much apparent but doing the right thing instead of kissing Trump's fat ass in never-ending gratitude would go a long way in fixing what is obviously broken

[gab13by13]

10. The DC court has 3 Trump judges,

4 Obama judges
2 George HW Bush judges
2 Clinton judges
4 Reagan judges
1 Biden judge.

[agingdem]

12. but what if the DC court denies their appeal?

they'll appeal to the Supreme Court, right?

[gab13by13]

15. Correct

[paleotn]

9. Fascism has always been in America. It's just never been in charge until the last 5 years.

[onenote]

5. The Committee is taking no position on the request for an administrative injunction

At least, that's what Trump's filing claims: "The Defendant- Appellees’ take no position on the request for an administrative injunction."

However, somewhat inconsistently, Trump's brief also suggests that the Committee supports the request for administrative injunction by stating that "The parties request that the Court consider this motion promptly and enter the following briefing schedule for the Motion for an Injunction Pending Appeal"

While it could be argued that the Committee isn't supporting the grant of the administrative injunction, but only the adoption of the expedited schedule for the appeal, it seems likely, unless the Committee files something disputing the statements in the Trump filing that the Court of Appeals will grant the requested administrative injunction, which would have the effect of delaying the release of the documents to the Committee until after the Court of Appeals rules on the separate request for an injunction pending appeal. That's because the standard for an administrative injunction under the All Writs Act is different from the standard for an injunction pending appeal in that it doesn't require the court to apply the four-part test for injunctive relief that the District Court previously considered (and concluded Trump had not met).

[gab13by13]

11. Most likely

the court will grant the stay anyway since it wants to make the ruling.

[SheCat]

22. No Way

The committee definitely has position.

[onenote]

27. It wouldn't be a complete surprise

Last edited Thu Nov 11, 2021, 06:39 PM - Edit history (2)

If the committee took no position on the administrative injunction request. Not the same as the as yet to be filed motion for a stay pending appeal which the committee definitely will oppose.

And, in fact, the Court has granted the unopposed request for an administrative injunction and set the following briefing schedule: Trump's brief in support of his motion is due November 16. The Committee's brief is due November 22 t and Trump then has until November 24 to respond to the Committee's brief. However, oral argument won't be held until November 30, so there won't be ruling until first week of December at earliest.

While this sounds good for Trump, he has to be shitting bricks over the three-judge panel that will hear the case: Two Obama appointees and a Biden appointee.

ON EDIT: revised briefing schedule, which is a bit more drawn out than what Trump's motion requested.

[PatSeg]

8. After 75 years, it is time people

start telling this man "No" over and over again until he finally gets the message. Enough already.

[SeattleVet]

17. A sharp 'No!' ...

accompanied by a smart whack on the nose with a rolled up newspaper.

Or, at the very least, a stack of subpoenas.

[PatSeg]

32. Oh yes, a HUGE stack of subpoenas!

This has gotten ridiculous. No president or government official has ever gotten away with as much crap as Trump has and he did the same as a businessman for decades.

[marshall]

13. I hope the documents are being kept in a very secure location

And copies have been made, and current access is restricted. After the Sandy Berger affair the DOJ surely has tightened security in matters of high concern like this.

[Ray Bruns]

14. Will no one stop this farce?

[gab13by13]

16. Good choice of words,

I just found out that Trump's main reason to deny release of the documents is "to preserve the status quo." The freaking status quo is an ongoing coup.

[LetMyPeopleVote]

23. The DC Circuit will temporarily block the Jan. 6 committee from getting Trump's records

Link to tweet

[George II]

25. I wish many of the people who complain about "why don't they do this", or "why don't they do that"..

....would learn about the law and see how these things work.

We had a DUer who would explain things like this very well, but for some reason she's no longer here.

[LetMyPeopleVote]

26. For this thread

Link to tweet

[Cha]

30. Amen!

[Jarqui]

24. The judge explains it fairly clearly here:

https://www.politico.com/f/?id=0000017d-0cc9-dddc-a77f-0ddb5b740000

These paragraphs lay a bunch of it out:

A stay would not give Plaintiff the relief he seeks—preventing the
transmission of documents from NARA to the House Select Committee—as the status quo in this
case is that NARA will disclose documents on November 12, “absent any intervening court
order.”

A motion for a preliminary injunction pending appeal requires the same four elements
necessary for a preliminary injunction: (1) a likelihood of success on the merits, (2) the likely
prospect of irreparable harm in the absence of preliminary relief, (3) that the balance of equities
tip in movant’s favor, and (4) that an injunction is in the public interest. John Doe Co. v.
Consumer Fin. Prot. Bureau, 849 F.3d 1129, 1131 (D.C. Cir. 2017) (citing Winter v. Nat. Res.
Def. Council, Inc., 555 U.S. 7, 22 (2008)). This court analyzed these factors at length in its
Opinion denying Plaintiff’s original motion for a preliminary injunction, and found that none
justified injunctive relief. See Trump v. Thompson, 2021 WL 5218398, at *12-39. In his
renewed motion, despite the fact that he requests essentially the same relief as in his original
preliminary injunction motion, Plaintiff has not advanced any new facts or arguments that
persuade the court to reconsider its November 9, 2021, Order. The court’s analysis previously
rejecting Plaintiff’s requested relief is thus equally applicable here: Plaintiff is unlikely to
succeed on the merits of his claims or suffer irreparable harm, and a balance of the equities and
public interest bear against granting his requested relief. Id.

Nor is Plaintiff entitled to injunctive relief under the “serious legal question” doctrine.
...
The court has already found that Plaintiff is unlikely to succeed on the merits in this case,
and the three remaining preliminary injunction factors do not “tip sharply” in his favor. To the
contrary, those factors counsel against injunctive relief. See Trump v. Thompson, 2021 WL
5218398, at *36-39. Plaintiff cannot do an end run around the preliminary injunction factors
simply because he seeks appellate review. Rather, the court maintains “a considerable reluctance
in granting an injunction pending appeal when to do so, in effect, is to give the appellant the
ultimate relief being sought.”

She says Trump can carry on and try the Appeals court.
But her previous decision outlined that the Appeals court has to apply the criteria she already went through (Trump failed on all four things required to get his way) and Trump hasn't been able to add anything to bolster his case.

[Karma13612]

28. Soooooo,

Does this mean he can keep appealing but it won’t stop the release of the documents?

As of tomorrow, if the Appeals court cannot succeed on the all 4 criteria, will we hear:

“Release the Kraken”????


(Phrase from the movie, NOT the more recent coopted use for Conspiracy Theories!!)

[Jarqui]

31. He'll probably try the Supreme Court

They improved his argument in their Appeal but was it good enough to overturn all four criteria?

Didn't look that way to me.

[Karma13612]

33. Darn, he got a last minute

Stay.

But Texas women can’t get abortions.

This guy needs to be told NO.