According to court documents, Trump has less than a month to obtain a first court order blocking the release of the records. The National Archives told Trump last week that they intended to turn over the documents on Nov. 12, as President Joe Biden refused to assert executive privilege over them.
Trump’s efforts to act quickly now to stop the release may ultimately turn into a broader strategy to cut time, legal experts told CNN. With Democrats at risk of losing control of Congress midway through next year, if Trump can prolong the litigation long enough, that might be enough to derail their request for documents, no matter how the legal issues ultimately turn out. settled.
If Trump gets a temporary court order – an application he will likely make to the Supreme Court if need be – blocking the Nov. 12 release, the pace of the proceedings could slow down a bit. At least part of the legal basis that the lawsuit seeks to explore is hanging in the air and may prompt courts to deliberately consider the issues.
“In some ways, this is really working in President Trump’s favor because there are so many issues that the courts will have to deal with for the first time,” said Emily Berman, professor at the University of Houston Law Center.
Why Trump must act quickly if he wants to drag things out
The case bears similarities to Trump v. Mazars, the lawsuit that the then president brought against his accounting firm to prevent it from disclosing its financial statements to the House. While the Supreme Court has dismissed its most aggressive demands in this case, it kicked in a way that continued to block congressional efforts to obtain the documents.
It seems likely that Trump will push the case back to the Supreme Court again if need be, where he will be greeted by a Conservative 6-3 majority. How quickly the Supreme Court comes into the spotlight will depend on how the case is handled by the lower courts.
Unlike some of the other litigation that surrounded Congressional investigations into Trump while he was president, it is now up to Trump to get a court order blocking the publication of the document – and get one quickly.
“The position of these particular lawsuits allows it to go much faster than say, like the McGahn litigation,” said Jonathan Shaub, former lawyer in the Department of Justice’s legal counsel’s office and now an assistant professor at the University of Justice. Kentucky College. of the law. In that case, the House was suing to force Trump’s White House lawyer Don McGahn to appear to testify. In this case, the Archives have indicated that they plan to hand over the documents, so it is up to Trump to get court intervention to stop him.
“She’s a very efficient judge and I guess she will go very quickly,” Neil Eggleston, former White House lawyer for President Barack Obama, told CNN.
If she denies the preliminary injunction request, Trump will then rely on the U.S. Circuit Court of Appeals in DC, where a three-judge panel would be next to consider the case. While the DC circuit as a whole is not friendly territory for Trump, in the past he has drawn panel selections that have broken in his favor. After the appeal court panel has ruled, there are a few options for either side if they want to keep the battle on appeal. The Supreme Court will be Trump’s next step if he is unable to get the immediate intervention he wants at the district or appeal level.
A request for the Supreme Court to block the Nov. 12 release would first be filed on the court’s emergency case – informally known as shadow cases – although the High Court has a number of options to determine how quickly or slowly she would like to take her next steps in the matter.
If the Supreme Court so wished, it could expedite the examination of the merits of the case and render a decision resolving the case within a few months. A temporary order in the coming weeks suspending the release – assuming a lower court does not – will give a glimpse of how seriously the Supreme Court takes the claims.
“I think we’ll know pretty quickly what the Supreme Court majority’s view is,” said Greg Lipper, constitutional and criminal lawyer in Washington, DC.
“It’s a situation where you can’t know you can’t ring the bell, obviously,” Lipper said, referring to the next deadline. “So if they are at all sympathetic to Trump’s claims, they are likely to call for release.”
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Trump makes two major claims in the lawsuit: first, that Congress’ request for the documents is invalid because it would lack legislative purpose, and second, that as a former president he should be allowed to argue the executive privilege even as current president. has refused.
Much of the first lawsuit is based on the Mazars case, although the judiciary will consider these issues in very different circumstances from those that preceded it during the House’s quest for Trump’s tax returns. On that last question, on Trump’s ability to assert executive privilege while he’s not in office, legal territory hasn’t been covered well. Even if Trump is doomed to lose, the open nature of the issue may prompt the Supreme Court to get involved and give the case a full hearing.
The Supreme Court, dismissing Nixon’s claim that the law was unconstitutional, said that a sitting president was “in the best position to assess the present and future needs of the executive branch and to support the invocation of privilege accordingly. “.
Even legal experts who are largely skeptical of Trump’s arguments admit that the ruling leaves little room for maneuver in the courts. The Supreme Court opinion said the former president “may also be heard to assert” claims of privilege.
“There is a recognition [that] there is an interest in the former president, but the significance of that interest is not explored, ”said Shaub, the former DOJ lawyer.
It is possible that the courts will decide that there are circumstances in which judges should heed the assertion of privilege of former presidents, but still rule against Trump in this particular case. Trump also argues that Congress’ request for his records should be denied because the inquiry like the one pursued by the House select committee does not fall under constitutionally established legislative authorities.
There are many examples of potential legislation emerging from the investigation that the House committee could point to in the case, according to Eggleston, Obama’s former White House legal adviser.
The Chamber could also argue that “we have the power to investigate any armed aggression against our institution,” Eggleston said. “I don’t see a court saying, ‘Oh no, you just have to sit on your hands.… You have to leave that to another branch of government.’ I think that would be a laughable response from a court. ”