Jan. 6 committee on verge of obtaining some records Trump has tried to shield

The Jan. 6 select committee is on the verge of obtaining several pages of Donald Trump’s White House records that the former president has tried to shield from congressional investigators.

In a new court filing, the Justice Department said the National Archives — which houses Trump’s White House files — planned to release four pages of records to the House on Wednesday evening despite Trump’s pending request at the Supreme Court to block the handover of those and other records.

Although lower courts — which unanimously ruled against Trump’s effort to keep the pages secret — agreed to keep large swaths of his records secret while he appealed to the Supreme Court, those orders applied to only three tranches of records identified through November.

According to the Justice Department, the fourth tranche, identified by National Archives and Records Administration officials in December, was not covered by the lower-court orders. However, Trump’s lawyers did ask the Supreme Court on Dec. 23 to halt all transfers of disputed records to the House panel. The high court has yet to act on that request.

The acting head of the department’s Civil Division, Brian Boynton, said that in light of the lack of any court order prohibiting the disclosure, NARA planned to provide the four contested pages to the committee unless a court ordered otherwise by Wednesday.

“Absent an intervening court order, the Archivist intends to release records from the fourth tranche to the Committee at 6:00 pm tomorrow,” Boynton said in a letter filed with the D.C. Circuit on Tuesday evening.

Boynton said the Justice Department had alerted Trump’s lawyers to the possibility that the new records would be released. The former president's attorneys informed the DOJ on Tuesday that they believed the planned handover of the so-called fourth tranche would violate a stay that the D.C. Circuit imposed in November and appeared to be an end run around the D.C. Circuit Court of Appeals’ stay of the matter pending Supreme Court review.

“Their strategy can only be interpreted as an attempt to interfere with this Court’s and the Supreme Court’s jurisdiction,” attorney Jesse Binnall wrote in a midnight letter to the court.

Binnall said a notification he received earlier Tuesday from DOJ suggested NARA was going to send six pages of disputed records to the Jan. 6 committee — including a two-page memo that was substantially the same as one included in the first tranche of documents still blocked by the court’s administrative stay. It was only after his team pointed this out, he writes, that DOJ agreed to continue withholding those two pages.

However, the Justice Department attorney said the stay applied only to the three sets of records originally at issue in the litigation.

Boynton noted that President Joe Biden agreed to delay the release of the fourth tranche of records until Jan. 19 “to ensure the former President had an opportunity to seek judicial relief.”

“Despite that opportunity, the former President did not move for a preliminary injunction in district court with respect to records from the fourth tranche or even amend his complaint to seek relief with respect to any such records,” Boynton said. “Nor did he seek clarification or further relief from this Court. His only request for relief with respect to records from the fourth tranche was in the Supreme Court.”

Binnall did not immediately respond to messages seeking comment on the latest twist in the legal fight. But in his letter, Binnall said that if NARA provides the records to the committee, Trump intends to move to hold Archivist David Ferriero in contempt of court.

“Their letter is nothing more than an attempt to proactively build a defense to prospective contemptuous conduct,” Binnall wrote. “The government has the burden backwards: President Trump is under no obligation to seek another injunction to prevent an act squarely prohibited by an injunction already granted him.”

The Supreme Court has not indicated whether it will take up Trump’s lawsuit, allow the lower court rulings to stand or grant emergency relief pending its decision. House lawyers urged the justices to consider the case at their Jan. 14 conference, but Friday’s meeting came and went without any public acknowledgment of their plans.

Trump has moved to keep hundreds of pages of his White House records from congressional investigators, claiming that he has the authority to assert executive privilege over them. The pages include hundreds culled from the files of his former chief of staff Mark Meadows and former press secretary Kayleigh McEnany, among other top officials. They include briefing notes, speech drafts and call and visitor logs, among other records.

The substance of the four pages in the fourth tranche was not immediately clear. Trump had sought to block the panel from receiving six pages — but two of them, Boynton indicated, were substantially similar to pages in an earlier tranche that was covered by the court order, so they will continue to be withheld.