Federal appeals court rejects Trump's bid to block Congress' Capitol riot probe, says executive privilege can't be used to shield efforts 'to subvert the Constitution itself'

Trump
Former President Donald Trump.Win McNamee/Getty Images
  • A federal appeals court rejected Trump's request to block the Jan. 6 select committee from obtaining executive branch records.

  • Trump asserted executive privilege over the documents, but the Biden administration declined to do the same.

  • The court said executive privilege should not be used to withhold "information that reflects a clear and apparent effort to subvert the Constitution itself."

A federal appeals court on Thursday rejected former President Donald Trump's bid to block the January 6 select committee from obtaining a tranche of executive branch documents it said were relevant to its investigation of the deadly Capitol insurrection.

Trump asserted executive privilege over the documents, but the Biden White House declined to do the same and authorized the National Archives and Records Administration to turn over the materials to Congress. Trump filed a lawsuit in response, setting up the first constitutional showdown testing whether a sitting president has the right to overrule their predecessor's assertion of executive privilege.

A federal judge last month rejected Trump's request, saying that while he has the right to assert privilege, President Joe Biden is not required to honor it.

The Washington, DC, Circuit Court of Appeals affirmed the lower court's ruling on Thursday in a blistering 68-page opinion written by Judge Patricia Millett.

"Benjamin Franklin said, at the founding, that we have '[a] Republic'—'if [we] can keep it.' The events of January 6th exposed the fragility of those democratic institutions and traditions that we had perhaps come to take for granted," Millett wrote.

She added that in response, both the incumbent president and Congress determined 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 ruling said.

It also highlighted the "unique and extraordinary circumstances" surrounding the case, noting that 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," the ruling continued.

House Speaker Nancy Pelosi applauded the opinion, saying in a Thursday evening statement that "no one can be allowed to stand in the way of the truth – particularly not the previous President, who incited the insurrection."

The appeals court panel signaled its skepticism of Trump's argument in a hearing last month, questioning his lawyers' claim that Trump has the right to dictate which documents Congress gets in connection to the Capitol riot probe.

"We have one president at a time under our Constitution," Millett said at the hearing. "That incumbent president … has made the judgment and is best positioned, as the Supreme Court has told us, to make that call as to the interests of the executive branch."

A lawyer for Congress also rejected Trump's assertion that the dispute surrounding the documents Congress wants involves two warring branches of government.

"There is no clash here between the branches. The president has made a decision that he explained about the important interests of the American people in getting — having the select committee get to the truth here," House counsel Douglas Letter said, referring to Biden. "And so the president is completely in agreement with Congress in this situation ... there simply is no separation-of-powers claim that a former president can make."

Read the original article on Business Insider