WASHINGTON — Former President Donald Trump asked a federal appeals court Tuesday to block the National Archives from giving Congress quick access to records from his White House related to the Jan. 6 riot at the Capitol, arguing that litigation over whether they are properly shielded by his claim of executive privilege should fully play out first.

In a 54-page brief filed before the Court of Appeals for the District of Columbia Circuit, Jesse R. Binnall, a lawyer for Trump, reiterated his argument that the Constitution gives the former president the power to keep those files confidential even though he is no longer in office — and even though President Joe Biden refused to assert executive privilege over them.

“The stakes in this case are high,” Binnall wrote, adding that a decision to uphold Congress’ subpoena over Trump’s objections would set a precedent that would shift the balance between the legislative and executive branches.

“It is naïve to assume that the fallout will be limited to President Trump or the events of Jan. 6, 2021,” he wrote. “Every Congress will point to some unprecedented thing about ‘this president’ to justify a request for his presidential records. In these hyperpartisan times, Congress will increasingly and inevitably use this new weapon to perpetually harass its political rival.”

The dispute raises novel issues about the scope of executive privilege when invoked by a former president without the support of the incumbent. It centers on a subpoena issued by the House committee investigating the Jan. 6 attack on the Capitol by Trump supporters seeking to block Congress from certifying Biden’s election win.

The committee is seeking White House documents that would show Trump’s movements, meetings and communications before and during the day of the riot. Jan. 6 began with a rally convened by Trump at which he repeated his baseless assertion that the election was stolen from him while encouraging his supporters to “fight like hell” and to walk down to the Capitol.


After Biden, through his White House counsel, told the head of the National Archives that he believed it was in the public interest for the Jan. 6 committee to obtain the White House files and so would not invoke executive privilege over them, Trump filed a lawsuit, seeking an injunction blocking the agency from giving the records to Congress.

Last week, U.S. District Judge Tanya Chutkan sided with Congress and the Biden administration. She ruled that while Trump could invoke executive privilege, whatever residual secrecy powers he possesses were outweighed in these circumstances by the constitutional investigative authority of Congress backed by Biden.

Trump “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,’” Chutkan wrote. “But presidents are not kings, and plaintiff is not president.”

The National Archives had been scheduled to provide a first batch of documents to Congress last Friday. (It has been identifying additional batches on a rolling basis.) Chutkan declined to block the transfer of the documents from proceeding while Trump appealed her ruling, but the D.C. Circuit appeals panel issued a short-term block to freeze matters in place for now.

The chair of the Jan. 6 committee, Rep. Bennie Thompson, D-Miss., has said he wants to finish its work by late spring, raising the question of whether the litigation will thwart the panel from obtaining access to the records before it completes any final report.

In his brief, Binnall wrote that it was important that the legal issues be definitively resolved before Congress gains access to any of the disputed records, suggesting it would do his client little good if he ultimately wins the case but the House has already seen the confidential files.


“The limited interest the committee may have in immediately obtaining the requested records pales in comparison to President Trump’s interest in securing judicial review before he suffers irreparable harm,” Binnall wrote.

Both in office and out, amid frequent disputes with Congress over access to government information for oversight investigations, Trump has pursued a strategy of stonewalling, rather than negotiating a compromise, and using the generally slow pace of litigation to run out the clock.

Against that backdrop, the appeals court panel has scheduled arguments for Nov. 30 on the preliminary question of whether to continue to block the National Archives from turning over any papers to Congress while it considers the legal merits of Trump’s executive privilege claim. Should it drop that block, Trump would most likely appeal to the Supreme Court.

To date, all the judges randomly assigned to hear the matter have been liberal-leaning Democratic appointees. Chutkan was appointed by President Barack Obama, as were two judges on the appeals court panel: Patricia A. Millett and Robert L. Wilkins. The third appellate judge, Ketanji Brown Jackson, was appointed by Biden.

But if the case reaches the Supreme Court, the atmosphere may be different. Six of the nine justices are conservative-leaning Republican appointees, including three whom Trump named to the bench.