Petition for Writ of Certiorari — Donald J. Trump, former President of the United States, Petitioner v. Bennie G. Thompson, in His Official Capacity as Chairman of the United States House Select Committee to Investigate the January 6th Attack on the United States Capitol, et al.

No. 21In the

Supreme Court of the United States

DONALD J. TRUMP, IN HIS CAPACITY AS THE 45TH

PRESIDENT OF THE UNITED STATES,

Petitioner,

v.

BENNIE G. THOMPSON, IN HIS OFFICIAL

CAPACITY AS CHAIRMAN OF THE UNITED STATES

HOUSE SELECT COMMITTEE TO INVESTIGATE

THE JANUARY 6TH ATTACK ON THE UNITED

STATES CAPITOL, et al.,

Respondents.

On Petition for a Writ of Certiorari to the United

States Court of A ppeals for the DC Circuit

PETITION FOR A WRIT OF CERTIORARI

Justin Clark

Elections, LLC

1050 Connecticut Avenue, NW,

Suite 500

Washington, DC 20036

(202) 987-9944

Jesse R. Binnall

Counsel of Record

Binnall Law Group, PLLC

717 King Street, Suite 200

Alexandria, VA 22314

(703) 888-1943

jesse@binnall.com

Counsel for Petitioner

309776

A

(800) 274-3321 • (800) 359-6859

i

Question Presented

The United States House of Representatives’ Select

Committee to Investigate the January 6th Attack on the

United States Capitol issued a “sweeping” request, seeking

many of President Trump’s confidential presidential

records. The request implicates important constitutional

and statutory concerns arising from the Presidential

Records Act, separation of powers, and executive

privilege. Nevertheless, the Biden Administration now

seeks to produce those records to the Committee, and

will do so, absent court intervention.

The question presented is:

Whether the Committee’s records request violates

the Constitution or laws of the United States entitling

President Trump to a preliminary injunction prohibiting

production of the records to the Committee.

ii

Parties to the proceeding and related

proceedings

The parties to the proceeding below are as follows:

Petitioner is Donald J. Trump, in his capacity as the

45th President of the United States. He was the plaintiff

in the district court and appellant in the court of appeals.

Respondents are Bennie G. Thompson, in his capacity

as Chairman of the United States House Select Committee

to Investigate the January 6th Attack on the United States

Capitol; the United States House Select Committee to

Investigate the January 6th Attack on the United States

Capitol; David Ferriero, in his capacity as Archivist of the

United States; and the National Archives and Records

Administration.

The related proceedings below are:

1.

Donald J. Trump v. Bennie G. Thompson, et al.,

No. 21-cv-2769 (TSC) (D.D.C.) – Order denying

preliminary injunction entered on November 9,

2021; and

2.

Donald J. Trump v. Bennie G. Thompson, et al.,

No. 21-5254 (D.C. Cir.) – Judgment entered on

December 9, 2021.

iii

TABLE OF CONTENTS

Page

Question Presented . . . . . . . . . . . . . . . . . . . . . . . . i

Parties to the proceeding and

related proceedings . . . . . . . . . . . . . . . . . . . ii

TABLE OF CONTENTS . . . . . . . . . . . . . . . . . . . . . . . . iii

TABLE OF APPENDICES . . . . . . . . . . . . . . . . . . . . . . . v

TABLE OF CITED AUTHORITIES . . . . . . . . . . . . . . . vi

Opinions below . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1

Jurisdiction . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1

Constitutional and Statutory

Provisions Involved . . . . . . . . . . . . . . . . . . . . . 1

Introduction . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2

Statement . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6

I.

Background . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6

II. Proceedings Below . . . . . . . . . . . . . . . . . . . . . . . . 10

reasons for granting the petition . . . . 11

iv

Table of Contents

Page

I.

The Committee’s request raises novel and

important questions of law that the Court

should resolve . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12

II. The Committee’s request is facially invalid . . . 15

A. The Presidential Records Act, its

i mplement i ng r eg u l at ion s , a nd

constitutional separation of powers

all require a legislative purpose and

the absence of alternatives prior to

requesting presidential records . . . . . . . . . 15

B. The request violates this Court’s

Mazars decision and the Separation of

Powers . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 19

C. The records at issue are protected by

executive privilege and the Committee

has not made a sufficient showing

of need to invade that privilege . . . . . . . . . 22

D. The equitable injunctive factors favor

President Trump and weigh heavily

in favor of review by the Court. . . . . . . . . . 28

III. This case presents an appropriate vehicle to

resolve these weighty issues . . . . . . . . . . . . . . . . 33

Conclusion . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 34

v

TABLE OF APPENDICES

Page

Appendix A — opinion of the UNITED

STATES COURT OF APPEALS FOR THE

DISTRICT OF COLU M BI A CIRCUIT,

FILED DECEMBER 9, 2021 . . . . . . . . . . . . . . . . . . 1a

Appendix B — MEMORANDUM opinion

of the united states DISTRICT

C OU RT F OR T H E DI S T R IC T OF

COLUMBIA, FILED NOVEMBER 9, 2021 . . . . . 78a

A ppendi x c — relevant

constitutional and statutory

provisions . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 127a

vi

TABLE OF CITED AUTHORITIES

Page

Cases

Am. Trucking Associations, Inc. v.

City of Los Angeles,

559 F.3d 1046, 1059 (9th Cir. 2009) . . . . . . . . . . . . . . 29

Ass’n of Cmty. Orgs. for Reform Now (ACORN)

v. FEMA,

463 F. Supp. 2d 26 (D.D.C. 2006) . . . . . . . . . . . . . . . . 31

Cheney v. U.S. District Court for D.C.,

542 U.S. 367 (2004) . . . . . . . . . . . . . . . . . . . . . . . . 14, 21

Clinton v. Jones,

520 U.S. 681 (1997) . . . . . . . . . . . . . . . . . . . . . . . . 14, 15

Council on American-Islamic Relations v.

Gaubatz,

667 F. Supp. 2d 67 (D.D.C. 2009) . . . . . . . . . . . . . . . . 29

Elrod v. Burns,

427 U.S. 347 (1976) . . . . . . . . . . . . . . . . . . . . . . . . . . . 29

Fund for Animals v. Norton,

281 F. Supp. 2d 209 (D.D.C. 2003) . . . . . . . . . . . . . . . 32

Gordon v. Holder,

721 F.3d 638 (2013) . . . . . . . . . . . . . . . . . . . . . . . . . . . 31

In re Ford Motor Co.,

110 F.3d 954 (3d Cir. 1997) . . . . . . . . . . . . . . . . . . . . . 29

vii

Cited Authorities

Page

In re Sealed Case

No. 98-3077, 151 F.3d 1059 (D.C. Cir. 1998) . . . . . . . 29

In re Sealed Case,

121 F.3d 729 (D.C. Cir. 1997) . . . . . . . . . . . . . . . . . . . 23

Judicial Watch, Inc. v. Dep’t of Justice,

365 F.3d 1108 (D.C. Cir. 2004) . . . . . . . . . . . . . . . . . . 23

Kilbourn v. Thompson,

103 U.S. 168 (1880) . . . . . . . . . . . . . . . . . . . . . . . . . . . 20

Metro. Life Ins. Co. v. Usery,

426 F. Supp. 150 (D.D.C. 1976) . . . . . . . . . . . . . . . . . . 30

Nixon v. Adm’r of Gen. Servs. GSA,

433 U.S. 425 (1977) . . . . . . . . . . . . . . . . . . . . . . . passim

Nixon v. Fitzgerald,

457 U.S. 731 (1982) . . . . . . . . . . . . . . . . . . . . . . . . . . . 14

Nken v. Holder,

556 U.S. 418 (2009) . . . . . . . . . . . . . . . . . . . . . . . . . . . 31

O’Donnell Const. Co. v. Dist. of Columbia,

963 F.2d 420 (D.C. Cir. 1992) . . . . . . . . . . . . . . . . . . . 31

PepsiCo, Inc. v. Redmond,

1996 WL 3965 (N.D. Ill. 1996) . . . . . . . . . . . . . . . . . . 30

viii

Cited Authorities

Page

Providence Journal Co. v. FBI,

595 F.2d 889 (1st Cir. 1979) . . . . . . . . . . . . . . . . . 29, 32

Quinn v. United States,

349 U.S. 155 (1955) . . . . . . . . . . . . . . . . . . . . . . . . . . . 19

Senate Select Comm. on Presidential Campaign

Activities v. Nixon,

498 F.2d 725 (D.C. Cir. 1974) . . . . . . . . . . . . . . . . 12, 17

Shapiro v. U.S. Dep’t of Justice,

2016 WL 3023980 (D.D.C. May 25, 2016) . . . . . . . . . 32

Trump v. Mazars USA, LLP,

140 S. Ct. 2019 (2020) . . . . . . . . . . . . . . . . . . . . . passim

Trump v. Thompson,

Civil Action No. 21-5254, 2021 WL 5832713

(D.C. Cir. Dec. 9, 2021) . . . . . . . . . . . . . . . . . . . . . . 1, 11

Trump v. Thompson,

Civil Action No. 21-CV-2769, 2021 WL 5218398

(D.D.C. Nov. 9, 2021) . . . . . . . . . . . . . . . . . . . . . . . . 1, 10

United States v. Nixon,

418 U.S. 683 (1974) . . . . . . . . . . . . . . . . . . . . . . . passim

Watkins v. United States,

354 U.S. 178 (1957) . . . . . . . . . . . . . . . . . . . . . . . . 19, 20

ix

Cited Authorities

Page

Youngstown Sheet & Tube Co. v. Sawyer,

343 U.S. 579 (1952) . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6

Statutes and Other Authorities

28 U.S.C. § 1254(1) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1

U.S. Const. art I, § 8 . . . . . . . . . . . . . . . . . . . . . . . 1, 18, 20

U.S. Const. art. II, § 1, cl. 1 . . . . . . . . . . . . . . . . . . . . . . . . 1

44 U.S.C. § 2201 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8

44 U.S.C. § 2202 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8

44 U.S.C. § 2203 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8

44 U.S.C. § 2204 . . . . . . . . . . . . . . . . . . . . . . . . . . . . passim

44 U.S.C. § 2205 . . . . . . . . . . . . . . . . . . . . . . . . . . 1, 4, 8, 13

44 U.S.C. § 2205(2) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8

44 U.S.C. § 2205(2)(A) . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8

44 U.S.C. § 2205(2)(B) . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8

44 U.S.C. § 2205(2)(C) . . . . . . . . . . . . . . . . . . . . . . . 4, 8, 15

44 U.S.C. § 2206 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8

x

Cited Authorities

Page

44 U.S.C. § 2207 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8

44 U.S.C. § 2208 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8, 28

44 U.S.C. § 2209 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8

36 C.F.R. § 1270.44 . . . . . . . . . . . . . . . . . . . . . . . . . . . 28, 33

36 C.F.R. § 1270.44(c) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8

36 C.F.R. § 1270.44(d) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8

36 C.F.R. § 1270.44(f)(1) . . . . . . . . . . . . . . . . . . . . . . . . . . . 9

36 C.F.R. § 1270.44(f)(3) . . . . . . . . . . . . . . . . . . . . . . . . . . . 9

ABC News, ‘This Week’ Transcript 12-19-21:

Dr. Anthony Fauci & Rep. Adam Kinzinger,

ABC News (Dec. 19, 2021) . . . . . . . . . . . . . . . . . . . . . 17

CNN Politics, Kinzinger says January 6 panel

is investigating Trump’s involvement in

i n s u r r e c t i o n , C a b l e Ne w s Ne t w o r k

(Dec. 19, 2021) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 17

D.C. Cir. Rule 41(a)(1) . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11

Exec. Order No. 13489, 74 Fed. Reg. 4669

(Jan. 21, 2009) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9

xi

Cited Authorities

Page

Fed. R. App. P. 41(b) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11

H. Res. 503 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6, 7, 22

Late Night with Seth Meyers, Rep. Adam Schiff

Says It Was Torture Listening to Kevin

McCarthy’s Speech, YouTube (Nov. 22, 2021) . . 17, 20

Sup. Ct. Rule 10(c) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12

Tobi M. E. Young, Ethics After the Executive

Branch: The Perspective of the Office of the

Former President, 22 Tex. Rev. L. & Pol. 237

(2018) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13

1

Donald J. Trump, in his capacity as the 45th President

of the United States, respectfully petitions for a writ of

certiorari to review the judgment of the United States

Court of Appeals for the District of Columbia Circuit.

Opinions below

The district court’s opinion denying the preliminary

injunction is reported at Trump v. Thompson, - - - F.

Supp. 3d - - -, 2021 WL 5218398 (D.D.C. Nov. 9, 2021),

and is reproduced at Appendix (“App.”) B, at 78a-126a.

The D.C. Circuit’s opinion affirming the district court

is reported at Trump v. Thompson, - - - F.4th - - -, 2021

WL 5832713 (D.C. Cir. Dec. 9, 2021), and is reproduced

at App. A, at 1a-77a.

Jurisdiction

The D.C. Circuit issued its opinion on December 9,

2021. Petitioner did not seek a rehearing. The D.C. Circuit

requested that Applicant bring a petition for certiorari

and application for stay pending appeal within 14 days of

their order. Applicant now brings this petition on the 14th

day. This Court has jurisdiction under 28 U.S.C. § 1254(1).

Constitutional and Statutory

Provisions Involved

The constitutional and statutory provisions involved

in this case are: U.S. Const. art I, § 8; U.S. Const. art.

II, § 1, cl. 1; and the Presidential Records Act of 1978,

specifically 44 U.S.C. §§ 2204-2205, appended at App. C,

at 127a-148a.

2

Introduction

The rule of law embodied in this Court’s binding

precedent and our Constitution’s separation of powers

preserves ordered liberty and protects the rights of all

Americans. This case involves important constitutional,

statutory, and precedential limits placed on congressional

requests for presidential records, including by the

Presidential Records Act, this Court’s landmark decision

in Trump v. Mazars USA, LLP, 140 S. Ct. 2019 (2020), and

the constitutionally rooted executive privilege.

Congress limited its own access to Presidential

records when it adopted the Presidential Records Act,

a law it now stubbornly refuses to follow. The Executive

adopted implementing regulations and an executive order

reasonably regulating access to the records of former

Presidents. The Select Committee, however, ignored these

restrictions by sending a “sweeping” records request

to the National Archives and Records Administration

seeking broad swaths of confidential records created

during President Trump’s term of office.

The Constitution, this Court’s precedent, and federal

statutes invalidate the expansive request at issue here.

Moreover, a former President has the right to assert

executive privilege, even after his term of office. See Nixon

v. Adm’r of Gen. Servs. GSA, 433 U.S. 425, 439 (1977)

(“GSA”). This is so because executive privilege “safeguards

the public interest in candid, confidential deliberations

within the Executive Branch; it is ‘fundamental to the

operation of Government.’” Mazars, 140 S. Ct. at 2032

(quoting United States v. Nixon, 418 U.S. 683, 708 (1974)).

3

The congressional request is untethered from any valid

legislative purpose and exceeds the authority of Congress

under the Constitution and the Presidential Records Act.

Despite clear precedent and the unambiguous dictates of

statute, the D.C. Circuit upheld the Committee’s broad

requests and refused to honor President Trump’s well

established claims of executive privilege. For example, the

Committee asked for “[a]ll documents and communications

within the White House on January 6, 2021, relating

in any way to,” among others, the President, the Vice

President, over two dozen of the highest-ranking officials

in the federal government (including the National Security

Advisor and his Deputy, and the White House Counsel and

his Deputy), any Member of Congress or congressional

staff; or the Department of Defense, the Department

of Justice, the Department of Homeland Security, the

Department of the Interior, or any element of the National

Guard. This sweeping request alone demands access to

any number of records to which Congress is not–in any

way–entitled. First, such records have nothing to do with

the events of January 6th. Second, these records are

protected by executive and other privileges. And third,

and most importantly, these requests exceed the scope of

the requesting committee’s authority because they lack

any conceivable related legislative purpose.

The records of a former President are not distributed

freely upon the conclusion of his term of office, even

to Congress. Except in extraordinary circumstances,

records are protected from disclosure for a considerable

amount of time after a President has left office. The

following multistep analysis determines whether specific

records are subject to production:

4

Step one: The general rule is access to confidential

presidential records is restricted for a period not

exceeding twelve years after a President leaves office.

Upon Congress’ request to the National Archives and

Records Administration, the former President is notified

and provided an opportunity to object, either pursuant

to the Presidential Records Act or the constitutional

principles of separation of powers and executive privilege.

A threshold determination is then made as to whether

the records are restricted pursuant to the Presidential

Records Act or protected by executive privilege. The

positions of the current and former presidents are

considered in making this determination.

Step two: Next, the request must comply with limits

Congress placed upon itself in the Presidential Records

Act, 44 U.S.C. § 2205, which mirrors the constitutional

separation of powers limitations on records requests. See

Mazars, 140 S. Ct. at 2035-36. Specifically, Congress (or

a congressional committee acting within its delineated

jurisdiction) must demonstrate both a need for the

record necessary for it to conduct its business and that

the information in the records is not otherwise available.

§ 2205(2)(C). These requirements inherently demand that

the request be limited in scope. If Congress fails to meet

this burden, then the request is ineffective and it must be

rejected by the Archivist or the courts, irrespective of the

position of the incumbent President.

Step three: Should the Archivist determine that

Congress met its burden under the PRA, the requests

must still clear the constitutional restrictions of separation

of powers and executive privilege. The separation of

powers framework is defined by Mazars. Similarly,

5

whether Congress can invade the protections of a former

president’s executive privilege is determined by the

standards explained in Nixon and GSA. Indeed, courts

will not allow such an invasion absent a demonstrated

specific need for the information sought. Nixon, 418 U.S.

at 713. On this question, the incumbent President may

weigh in on whether a predecessor’s privilege should

be protected; his determination is weighty but not

determinative. Should Congress, the former President,

and the incumbent President not unanimously agree on

production, then a living former President can judicially

challenge the production. A multitude of factors should

be carefully considered before allowing such an invasion,

including: the relative positions of both the incumbent and

former Presidents regarding specific records, the relative

need of Congress for the specific records at issue, whether

the records will remain confidential, and the time that has

passed since the conclusion of the former President’s term

of office. This review should be conducted in camera to

ensure that the records remain confidential during the

dispute.

Contrary to this analysis, the Committee and the

Department of Justice contend, effectively supported

by the D.C. Circuit, that a committee of Congress may

request the most sensitive Oval Office communications

of a President mere months after he leaves office, if the

request is supported by the incumbent President. They

further argue that Congress is permitted to investigate

perceived wrongdoing, so long as it also promises at some

point in the future to consider some amorphous remedial

legislation. Their arguments, and the decisions of the

courts below endorsing them, lack any limiting principle.

Moreover, the decisions below effectively gut the ability

6

of former Presidents to maintain executive privilege over

the objection of an incumbent, who is often (as is the case

here) a political rival. These are profoundly serious issues

the Court should resolve.

The decision of the court below substantially expands

congressional power. Such expansion is at odds with

the Presidential Records Act and directly contrary to

this Court’s precedent and the Constitution. The D.C.

Circuit opinion transforms the nature of the interactions

between the political branches, eroding a “[d]eeply

embedded traditional way[] of conducting government.”

Youngstown Sheet & Tube Co. v. Sawyer, 343 U.S. 579,

610 (1952) (Frankfurter, J., concurring). The Constitution,

this Court’s precedent, and the Presidential Records Act

prevent two politically-aligned branches of government

from wielding unfettered power to undermine the

Presidency and our Republic. This Court should grant

certiorari to ensure unlawful exercises of congressional

power are checked by both reason and law.

Statement

I. Background

After the 2020 election, Democrats in Congress

created the United States House Select Committee to

Investigate the January 6th Attack on the United States

Capitol pursuant to House Resolution (“H. Res.”) 503. H.

Res. 503 purports to vest the Committee with unfettered

power to investigate the activities of intelligence agencies,

law enforcement agencies, and the A rmed Forces

surrounding January 6th; It also provides that the

Committee will issue a final report on its activities. DDC

Doc. 1.4 at 8. Pursuant to H. Res. 503, the Committee is

7

prohibited from holding the markup of any legislation. Id.

at 9. Notably, this resolution never discusses the authority

to investigate the Executive Office of the President. Id.

at 1-14.

On August 25, 2021, the Committee sent a selfdescribed “sweeping” request for presidential records to

the Archivist of the United States seeking information

from the Executive Office of the President and the Office

of the Vice President. DDC Doc. 1.2. These requests were

signed by Committee Chairman Bennie G. Thompson.

Id. The Committee’s request is startling in scope. For

example, among myriad other documents requested, the

Committee seeks:

[a]ll documents and communications relating

in any way to remarks made by Donald Trump

or any other persons on January 6, including

Donald Trump’s and other speakers’ public

remarks at the rally on the morning of January

6, and Donald Trump’s Twitter messages

throughout the day.

Id. at 2. Similarly, and even more invasive, the Committee

requested, “[f]rom November 3, 2020, through January

20, 2021, all documents and communications related to

prepared public remarks and actual public remarks of

Donald Trump.” Id. at 9.

The Committee also requested “[a]ll documents and

communications within the White House on January 6,

2021, relating in any way to . . . the January 6, 2021, rally

. . . [or] Donald J. Trump” and countless other individuals,

including close personal advisors to the President. Id. at

3-4 (emphasis added).

8

The Committee’s request purports to be made

“pursuant to the Presidential Records Act (44 U.S.C.

§ 2205(2)(C)).” See Id. at 1. The Presidential Records

Act (“PRA”) of 1978, 44 U.S.C. §§ 2201–2209, governs

the official records of Presidents and Vice Presidents.

The Archivist and the National Archives and Records

Administration (“NARA”) are charged with working with

a former President to administer and store presidential

records, among other duties, after the President leaves

office. See generally 44 U.S.C. §§ 2202–2208.

Under the PRA, the President is permitted to specify

a period not to exceed twelve years after his term during

which access to presidential records will be restricted. 44

U.S.C. § 2204. Section 2205(2) provides three exceptions

to the PRA’s access restrictions. 44 U.S.C. § 2205(2)(A)(C). In pertinent part, this section states, “Presidential

records shall be made available . . . (C) to either House

of Congress, or, to the extent of matter within its

jurisdiction, to any committee or subcommittee thereof

if such records contain information that is needed for the

conduct of its business and is not otherwise available.” 44

U.S.C. § 2205(2)(C).

The PRA gives the Archivist the power to promulgate

regulations to administer the statute. 44 U.S.C. § 2206(2).

Pursuant to those regulations, the Archivist must

promptly notify the former and incumbent Presidents

of a request for records created during that former

President’s term of office. 36 C.F.R. § 1270.44(c) (2002).

“The incumbent or former President must personally

. . . assert a claim of constitutionally based privilege

against disclosing a presidential record or a reasonably

segregable portion” thereof. 36 C.F.R. § 1270.44(d). “If a

9

former President asserts privilege, the Archivist consults

the incumbent President . . . to determine whether” he

agrees. 36 C.F.R. § 1270.44(f)(1). If, as here, the incumbent

President declines to uphold the claim of privilege, absent

a court directing otherwise, the Archivist discloses the

presidential record. 36 C.F.R. § 1270.44(f)(3).

Finally, Executive Order No. 13489 requires the

Archivist to notify both Presidents of his determination

to release certain records at least thirty days prior to

disclosure, unless a shorter time period is allowed under

the NARA regulations. Exec. Order No. 13489, 74 Fed.

Reg. 4669 (Jan. 21, 2009).

Pursuant to this regulatory and statutory framework,

the Archivist notified President Trump on August 30,

2021, that he intended to produce certain documents in

response to the Committee’s request. DDC Doc. 1.6 at

1. On October 8, 2021, the Biden White House Counsel

notified the Archivist that President Biden would not

be asserting executive privilege over certain documents

identified as responsive to the Committee’s request. DDC

Doc. 1.5. That same day, President Trump notified the

Archivist of his formal assertion of executive privilege

with respect to a subset of documents and his protective

assertion of executive privilege over any additional

materials that may be requested by the Committee

pursuant to the PRA, associated regulations, and the

applicable executive order. DDC Doc. 1.6. Subsequently,

President Trump made another assertion of executive

privilege on October 21, 2021. DDC Doc. 21.1.1

1. NARA’s review of responsive records continues on a rolling

basis; on November 15, 2021, President Trump made another

assertion of privilege.

10

The Biden White House Counsel notified the Archivist

that President Biden would not assert executive privilege

over the documents identified in President Trump’s

October 8 letter. The Biden White House then instructed

the Archivist to turn the records over to the Committee

thirty days from the date President Trump was notified

of President Biden’s decision, absent an intervening court

order. DDC Doc. 1.7.

On October 13, 2021, the Archivist notified President

Trump that “[a]fter consultation with Counsel to the

President and the Acting Assistant Attorney General for

the Office of Legal Counsel, and as instructed by President

Biden,” the Archivist “determined to disclose to the

Select Committee” all responsive records that President

Trump determined were subject to executive privilege on

November 12, 2021, absent an intervening court order.

DDC Doc. 21.1. Likewise, the Archivist notified President

Trump that further documents would be released over

his privilege objections on November 26, 2021, absent a

court order. Id.

II. Proceedings Below

President Trump filed his Complaint in the U.S.

District Court for the District of Columbia on October

18, 2021, and his Motion for a Preliminary Injunction on

October 19, 2021. DDC Doc. 1; DDC Doc. 5. The district

court’s basis for jurisdiction came from 28 U.S.C. § 1331.

After briefing, the district court heard argument on

November 4, 2021, and denied President Trump’s motion

on November 9, 2021. App. B, at 78a-126a; Trump v.

Thompson, Civil Action No. 21-CV-2769, 2021 WL 5218398

(D.D.C. Nov. 9, 2021) (denying Plaintiff-Appellant Donald

11

J. Trump’s Motion for Preliminary Injunction). President

Trump filed his Notice of Appeal that same day, DDC.

Doc. 37, and shortly thereafter moved the district court

for an injunction pending appeal or an administrative

injunction. DDC Doc. 38. The district court subsequently

denied President Trump’s Motion, DDC Doc. 43, but the

U.S. Court of Appeals for the District of Columbia Circuit

(hereinafter “D.C. Circuit”) granted an administrative

injunction and expedited the appeal. CADC Doc. 1921975

at 1.

The D.C. Circuit heard argument on November 30,

2021. Id. at 2. On December 9, 2021, the Circuit affirmed

the district court’s order. See Trump v. Thompson, Civil

Action No. 21-5254, 2021 WL 5832713 (D.C. Cir. Dec. 9,

2021). However, the D.C. Circuit directed the Clerk to

withhold issuance of the mandate pending disposition of

Petitioner’s injunctive request filed contemporaneously

with this Petition. Id. at *31 n.20; Judgment, App. A,

1a-77a. The Circuit further directed that, should this

Petition and a motion for an injunction be timely filed,

then its administrative injunction would remain operative

until this Court decided whether to grant injunctive relief.

Otherwise, should no such filing be made by December 23,

2021, the D.C. Circuit’s administrative injunction would

expire. Id. Finally, the D.C. Circuit directed the Clerk to

issue the mandate immediately after the dissolution of

its administrative injunction. CADC Doc. 1926126 (citing

Fed. R. App. P. 41(b); D.C. Cir. Rule 41(a)(1)).

reasons for granting the petition

This case presents “an important question of federal

law that has not been, but should be, settled by this Court.”

12

Sup. Ct. Rule 10(c). At stake is the ability of Presidents—

past, current, and future—to rely upon executive

privilege, separation of powers, and the Presidential

Records Act to protect confidential Presidential records

of deliberations from premature production to political

rivals. The Committee’s improper records request should

have been rejected out-of-hand; the D.C. Circuit’s decision

upholding it was wrong.

I.

The Committee’s request raises novel and important

questions of law that the Court should resolve.

A properly functioning Executive Branch requires

confidentiality in deliberations. Indeed, the Court recently

recognized, “[executive] privilege safeguards the public

interest in candid, confidential deliberations within the

Executive Branch; it is ‘fundamental to the operation

of Government.’” Mazars, 140 S. Ct. at 2032 (quoting

Nixon, 418 U.S. at 708). “[P]rotection of the presidential

decision-making process requires a promise that, as a

general matter, its confidentiality will not be invaded,

even to the limited extent of a judicial weighing in every

case of a claimed necessity for confidentiality against

countervailing public interests of the moment.” Senate

Select Comm. on Presidential Campaign Activities v.

Nixon, 498 F.2d 725, 729–30 (D.C. Cir. 1974) (cleaned up).

While the protections of executive privilege and

restrictions on access to presidential records are

qualified, it is critical that future Presidents and their

advisers understand the contours and perimeters of that

privilege—and its exceptions—after the conclusion of a

presidential term. Otherwise, the deliberative process

of advising Presidents will be chilled, as advisers will

13

doubtless understand the audience of their deliberations

is not simply the President in whose administration they

serve but also Congress and their political rivals. The

frankness of their advice will necessarily be chilled—to

the nation’s detriment. See, e.g., Tobi M. E. Young, Ethics

After the Executive Branch: The Perspective of the Office

of the Former President, 22 Tex. Rev. L. & Pol. 237, 243

(2018) (“It is in our national interest for presidents to

receive advice untainted by worries (or indeed hopes) that

the confidentiality of that advice will soon be dissolved,

but hasty release of former White House staffers’

communication with the former president would naturally

affect how current White House staffers interact with

their boss.”).

The Court’s guidance is necessary to decide this

important issue of first impression. While the Court has

recognized that executive privilege is qualified, it has not

explained the standard necessary to invade the privilege,

especially when it is asserted by a former President after

his term of office. Likewise, while the Court has recently

explained the standard Congress must meet to subpoena

an incumbent President’s records, it has not decided

the applicability of those protections to the records

of former Presidents, either under the constitutional

separation of powers, see Mazars, 140 S. Ct. at 2029-36,

the principles of executive privilege, or under the statutory

standard codified by the Presidential Records Act and its

implementing regulations. 44 U.S.C. §§ 2204-2205.

The courts below declined to adopt an objective test

providing for a reliable and politically neutral standard

to decide disputes regarding access to former Presidents’

confidential records, notwithstanding the protections

14

of executive privilege, separation of powers, and the

Presidential Records Act. Instead, the decisions below

support the invasion of presidential confidence on the basis

that the incumbent President and one house of Congress

support the involuntary waiver of the former President’s

constitutionally and statutorily protected rights.

The Court has granted numerous petitions of

Presidents and former Presidents when those cases

involve important questions about the functioning of

the presidency. For example, it granted the petitions of

President Nixon, years after he left office, regarding

a related issue of executive privilege, GSA, 433 U.S.

425 (1977), and again on the question of the scope of

absolute immunity, Nixon v. Fitzgerald, 457 U.S. 731

(1982) (holding that certiorari was justified “[i]n light of

the special solicitude due to claims alleging a threatened

breach of essential Presidential prerogatives under the

separation of powers”). It granted the petition of President

Clinton to address when it was proper for courts to

hear civil claims against an individual predating that

individual’s assumption of the Office of the President. See

Clinton v. Jones, 520 U.S. 681, 693-94 (1997) (describing

that the main concern in that case was distinguishing

between official and personal acts to avoid making “the

President ‘unduly cautious in the discharge of his official

duties’”). The Court has also addressed a petition by

President Trump with respect to the propriety of releasing

a President’s personal financial records to congressional

committees. Mazars, 140 S. Ct. 2019 (2020).

Special considerations are inherent in safeguarding

the confidentiality of presidential communications. Cheney

v. U.S. District Court for D.C., 542 U.S. 367, 385 (2004).

15

The unique interests of the presidency further support

the petition regardless of whether there is a split among

the Courts of Appeal on the question or whether the case

is “one-of-a-kind.” Clinton, 520 U.S. at 689.

The weighty issues here will not only affect President

Trump, but all future custodians of the presidency. To

properly perform their critical constitutional duties, they

must reliably know the standard that could be used to

invade the confidence of their communications with their

advisers. This important question merits the Court’s

careful consideration.

II. The Committee’s request is facially invalid.

A.

The Presidential Records Act, its implementing

regulations, and constitutional separation of

powers all require a legislative purpose and

the absence of alternatives prior to requesting

presidential records.

The PRA states that the Legislative Branch may

only have access to otherwise statutorily-restricted

Presidential records “if such records contain information

that is needed for the conduct of its business and that

is not otherwise available.” 44 U.S.C. § 2205(2)(C)

(emphasis added). This tracks the constitutional rule that

a Congressional request for documents “is valid only if

it is related to, and in furtherance of, a legitimate task

of the Congress.” Mazars, 140 S. Ct. at 2031 (cleaned

up). Congress has no “general power to inquire into

private affairs and compel disclosures,” and “there is no

congressional power to expose for the sake of exposure.”

Id. at 2032 (cleaned up).

16

A straightforward review of the PRA makes clear the

Committee has not met the statutory requirements to

demand the disputed records, to say nothing of how it has

fallen short of the constitutional standard. In addition to a

valid legislative purpose, Congress must also demonstrate

it has tried and failed to obtain the information through

all other available means.

Respondents’ approach provides no meaningful

limiting principle to Congress’s authority to obtain

presidential records. They have prevailed below on a

theory that effectively grants Congress plenary power to

request (and receive) any information, from any party, at

any time. CADC Doc. 1923479 at 34; CADC Doc. 1923461

at 48 (claiming the Committee’s request here has a valid

legislative purpose simply because the subject of the

request was one on which legislation “could be had.”).

The Committee is using this litigation to push past the

gatehouse erected by Mazars, where the court crafted

objective factors to ensure these types of disputes are

reasoned in a constitutional and neutral fashion. The

Court soundly rebuffed this approach barely a year ago.

Mazars, 140 S. Ct. at 2034 (rejecting Congress’s approach

because it aggravated separation of powers principles

by eschewing any limits on the power to subpoena

Presidential records).

Congress may not rifle through the confidential

presidential papers of a former President to meet political

objectives or advance a case study. In the last month,

Congressman Adam Schiff, a member of the Committee,

revealed on national television that “all [the Committee]

can do is expose all the malefactors, follow the evidence,

wherever it leads, tell the American people the story

17

of what went into January 6th, all the planning that

went into it, who was behind it in terms of the money.”

Late Night with Seth Meyers, Rep. Adam Schiff Says

It Was Torture Listening to Kevin McCarthy’s Speech,

YouTube (Nov. 22, 2021), https://www.youtube.com/

watch?v=mPvKNFC615o. He explicitly stated the point of

the investigation was to expose “[w]hat Donald Trump was

doing, what was he not doing, at the time that the Capitol

was being attacked, and make the case publicly.” Id. This

Court has been clear: such objectives fail constitutional

scrutiny. Mazars, 140 S. Ct. at 2032. Nevertheless, the

Circuit completely ignored this striking admission by

Congressman Schiff.

Congressman Kinzinger effectively admitted on

live television that the Committee was engaged in a

criminal investigation to determine whether laws were

broken on January 6, 2021. ABC News, ‘This Week’

Transcript 12-19-21: Dr. Anthony Fauci & Rep. Adam

Kinzinger, ABC News (Dec. 19, 2021), https://abcnews.

go.com/Politics/week-transcript-12-12-21-dr-anthonyfauci/story?id=81833124; CNN Politics, Kinzinger says

January 6 panel is investigating Trump’s involvement

in insurrection, Cable News Network (Dec. 19, 2021)

https://www.cnn.com/2021 /12/19/politics/adam-kinzingertrump-investigation-insurrection-cnntv/index.html. The

public comments of Committee members make it clear

that the body is acting more like an inquisitorial tribunal

than a legislative committee. Its members seek a “precise

reconstruction of past events” not because there are

“specific legislative decisions that cannot reasonably be

made without” the information it seeks, but simply for

the sake of the information itself. Select Committee, 498

F.2d at 731-33.

18

Even if the Committee had an appropriate legislative

purpose for pursuing President Trump’s confidential

records, their request is strikingly broad. Indeed, they seek

the President’s schedule, call logs, legal documents, and

briefing materials. They want to forage for information by

reviewing every White House email concerning President

Trump (which is effectively every email) on January 6,

2021. They even want campaign polling data dating to

April 2020. These sweeping requests are indicative of

the Committee’s broad investigation of a political foe,

divorced from any of Congress’s legislative functions

clearly delineated in Article I, § 8 of the Constitution.

The D.C. Circuit’s decision encourages blue-penciling,

where Congress will be incentivized to send broad

requests for Presidential records to incumbent and

former Presidents, divorced from any legislative purpose,

and then allow courts to limit them (or not) later. Again,

Congress can only request information tethered to a

“valid legislative purpose.” Mazars, 140 S. Ct. at 2031.

But these requests cannot be reformed, rewritten, or

redrafted by the courts to remedy inexact drafting and

improper purposes; they are too hopelessly broad and

devoid of legislative value.

Incredibly, the Committee did not even attempt

to get the information elsewhere, as is statutorily and

constitutionally required, before submitting its request

to the Archivist. The Committee is moving backwards:

requesting the documents first and then subpoenaing

dozens of witnesses and documents afterward. The

Committee has never explained why other sources of

information—outside of the requested records—could not

“reasonably provide Congress the information it needs in

19

light of its particular legislative objective.” Mazars, 140

S. Ct. at 2035-36.

B. The request violates this Court’s Mazars

decision and the Separation of Powers

Every information request made by Congress, whether

via statutory process or subpoena, must comply with the

strictures of the Constitution. See Mazars, 140 S. Ct. at

2034-35. Therefore, any argument by the Committee that

it need not comply with the constitutional requirements

regarding congressional information requests because

its request is ostensibly made pursuant to the PRA or

supported by an incumbent President’s administration

is meritless. Indeed, Congress cannot arrogate to itself

via statute, or other means, power beyond that which the

Constitution provides. Additionally, Congress cannot use

information requests to exercise “any of the powers of law

enforcement.” Quinn v. United States, 349 U.S. 155, 161

(1955). Those powers “are assigned under our Constitution

to the Executive and the Judiciary.” Id. Put simply,

Congress is not “a law enforcement or trial agency,” and

congressional investigations conducted “for the personal

aggrandizement of the investigators” or “to punish those

investigated,” like this one, are “indefensible.” Watkins v.

United States, 354 U.S. 178, 187 (1957) (cleaned up).

The Committee’s request is not supported by a valid

legislative purpose. In the request, Chairman Thompson

fails to identify a single piece of legislation he or the

Committee is even considering. He claims the purpose

of his request is to investigate the facts, circumstances,

and causes of the events at the United States Capitol

on January 6, 2021. But he fails to identify anything in

20

the private and privileged communications between and

among President Trump and his closest aides that would

advance or inform a valid legislative purpose or specific

legislation regarding those events. And an investigation

into alleged claims of wrong-doing is a quintessential lawenforcement task reserved to the executive and judicial

branches. Congress cannot engage in meandering fishing

expeditions in the hopes of embarrassing President

Trump or exposing the President’s and his staff’s sensitive

and privileged communications “for the sake of exposure.”

Watkins, 354 U.S. at 200; Late Night with Seth Meyers,

Rep. Adam Schiff Says It Was Torture Listening to Kevin

McCarthy’s Speech, YouTube (Nov. 22, 2021), https://www.

youtube.com/watch?v=mPvKNFC615o.

The “valid legislative purpose” requirement stems

directly from the Constitution. “The powers of Congress

. . . are dependent solely on the Constitution,” and “no

express power in that instrument” allows Congress to

investigate individuals or to issue boundless records

requests. Kilbourn v. Thompson, 103 U.S. 168, 182-89

(1880). The Constitution instead permits Congress to

enact certain kinds of legislation, see, e.g., Art. I, § 8, and

Congress’s power to investigate “is justified solely as an

adjunct to the legislative process.” Watkins, 354 U.S. at

197. In determining the constitutionality of congressional

records requests, the Mazars Court instructed courts to

“perform a careful analysis that takes adequate account

of the separation of powers principles at stake, including

both the significant legislative interests of Congress and

the unique position of the President.” 140 S. Ct. at 2035.

The Court then provided four “special considerations”

meant to guide that analysis, id. at 2035-36, all of which

confirm that the abusive and wide-ranging request here

serves no legitimate legislative purpose.

21

First, “the asserted legislative purpose” must

“warrant[] the significant step of involving the President

and his papers.” Id. at 2035. The alleged legislative

purpose underpinning the overbroad request at issue

here clearly does not merit involving the President or his

records. If Congress wishes to legislate regarding its

own security measures, it may certainly do so, but the

President’s private communications with and among staff

members over eleven months ago are irrelevant to that

legislation. The request openly admits that the Committee

seeks to “identify lessons learned, and recommend laws,

policies, procedures, rules, or regulations necessary . . . in

the future,” effectively treating President Trump as a

test subject. Nothing in the Constitution permits such a

speculative and unfounded records request.

Second, the request should be “no broader than

reasonably necessary to support Congress’s legislative

objective.” Mazars, 140 S. Ct. at 2036. “The specificity of

the . . . request ‘serves as an important safeguard against

unnecessary intrusion into the operation of the Office of

the President.’” Id. (quoting Cheney, 542 U.S. at 387).

This consideration alone counsels strongly against the

constitutionality of the Committee’s request. The request

is incredibly broad. For example, the request asks for “[a]

ll documents and communications within the White House

on January 6, 2021, relating in any way to . . . the January

6, 2021 rally . . . Donald J. Trump” and over thirty other

individuals and government agencies. Such a startlingly

broad request cannot withstand constitutional scrutiny

under the second Mazars factor.

Third, “courts should be attentive to the nature of the

evidence offered by Congress to establish that a [request]

22

advances a valid legislative purpose.” Mazars, 140 S. Ct.

at 2036. “[U]nless Congress adequately identifies its aims

and explains why the President’s information will advance

its consideration of possible legislation,” “it is impossible

to conclude that a [request] is designed to advance a valid

legislative purpose.” Id. H. Res. 503 generally permits

the Committee to investigate intelligence community

and law enforcement activities surrounding January 6th

but is silent regarding the records and materials of the

Executive Office of the President. The lack of evidence

establishing the Committee’s overbroad request serves

some valid legislative goal dooms the request, regardless

of whether President Biden’s wishes to waive privilege.

Fourth, courts should “assess the burdens imposed

on the President by [the] subpoena” because “[the

burdens] stem from a rival political branch that has an

ongoing relationship with the President and incentives

to use subpoenas for institutional advantage.” Id. As

discussed above, the number of records encompassed

by the Committee’s overbroad request is staggering.

At a minimum, the Committee must narrow its request

significantly or the burden on President Trump in

reviewing all responsive documents will be substantial.

C.

The records at issue are protected by executive

privilege and the Committee has not made

a sufficient showing of need to invade that

privilege

The records at issue are protected by executive

privilege, and the circuit court’s discretionary test

effectively eviscerates executive privilege. As this Court

has recognized many times, executive privilege is critical

23

to the proper functioning of the executive branch. Nixon,

418 U.S. at 708; GSA, 433 U.S. at 448–49. The smooth, safe,

and successful leadership of the United States requires

that the executive receive fulsome and frank advice from

his advisors. But “[h]uman experience teaches that those

who expect public dissemination of their remarks may well

temper candor with a concern for appearances and for

their own interests to the detriment of the decisionmaking

process.” Nixon, 418 U.S. at 705. As a result, executive

privilege is strong, and it is broad.

T he r e for e , t he pr i v i le g e “e x t end s ‘ b eyond

communications directly involving and documents actually

viewed by the President, to the communications and

documents of the President’s immediate White House

advisors and their staffs,’” i.e., documents “‘solicited and

received’ by the President or his immediate White House

advisors who have ‘broad and significant responsibility

for investigating and formulating the advice to be given

the President.’” Judicial Watch, Inc. v. Dep’t of Justice,

365 F.3d 1108, 1114 (D.C. Cir. 2004) (quoting In re Sealed

Case, 121 F.3d 729, 742 (D.C. Cir. 1997)).

If the privilege that covered one administration were

to evaporate immediately upon the transition to the next,

the privilege would be rendered all but worthless. The

privilege is “necessary to provide the confidentiality

required for the President’s conduct of office,” GSA, 433

U.S. at 448, which is why the “privilege survives the

individual President’s tenure.” Id. at 449. In GSA, this

Court rejected the assertion that “only an incumbent

President can assert the privilege of the Presidency,”

noting that “[a]cceptance of that proposition would, of

course, end th[e] inquiry.” 433 U.S. at 448.

24

True, a former president’s claim of privilege might be

weakened by a contrary determination by the incumbent.

But in GSA, the Supreme Court confirmed that a former

President retains executive privilege at least with respect

to confidential communications, and that he can assert his

privilege over the objections of the incumbent. That right

is Constitutional, as it is the privilege that protected his

deliberations while he was the sitting president. When the

PRA gives the President the discretion to uphold a claim

of executive privilege, it reflects GSA’s articulation of the

scope of a former president’s privilege: he may assert

the presidential communications privilege, but not the

executive state secrets privilege. GSA, 433 U.S. at 447-49

(differentiating between the two).

The District Court overread GSA. First, because an

incumbent’s decision detracts from the weight of a former

president’s assertion, it is not dispositive, as the Court

implies. It did not give the incumbent full veto power.

Second, GSA did not involve congressional overreach

and political machinations; the question was about the

processes by which the materials would be screened and

catalogued by professional archivists operating within

the executive branch, and the incumbent executive is,

obviously, in a better position to make that determination.

There is no dispute that the documents at issue are

covered by executive privilege. App. A, at 56a. They were

created during President Trump’s term of office and

reflect presidential decisionmaking, deliberations, and

communications among close advisors, attorneys, and the

President. They reflect presidential communications and

the deliberative process of Presidential advisers.

25

There is also no dispute, and the D.C. Circuit

acknowledged, that “former Presidents retain for some

period of time a right to assert executive privilege over

documents generated during their administrations.” App.

A, at 26a (citing GSA, 433 U.S. at 449). The Respondents

admitted there could be some amorphous case where

the interest of a former President would control over

an incumbent President, but they failed to provide any

framework for making such a decision.

The D.C. Circuit, too, acknowledged a former

President’s statutory right, but effectively reasoned it

away, finding the decision of the incumbent to waive the

executive privilege of his predecessor if Congress is in

agreement all but dispositive. That is not the law.

To the extent there was more to the test, the court

relied on the “weighty reasons” on which President Biden

grounded his decision to waive the privilege. App. A,

at 43a. It pointed to President Biden’s invocation of the

“unprecedented effort to obstruct the peaceful transfer

of power” on January 6th, which it credited as “unique

and extraordinary circumstances,” and cited President

Biden’s political conclusion that “the privilege ‘should not

be used to shield . . . information that reflects a clear and

apparent effort to subvert the Constitution.’” Id. (internal

quotations omitted). The court failed to articulate any

politically neutral standard to map out what a former

president must do to jump the hurdle, other than a fiveparagraph politically charged letter in which President

Biden declined to assert privilege over even a single

record.

26

At the same time, the court made clear its reasoning

is fluid, remarking that it “need not conclusively resolve

whether and to what extent a court could second guess the

sitting President’s judgment that it is not in the interests

of the United States to invoke privilege.” Id. at 40a. The

events at issue present “a rare and formidable alignment

of factors [that] support[] the disclosure of the documents

at issue.” Id.

The Circuit’s analysis, which substantially constricts

the former President’s right to object, contrary to GSA,

is a deeply subjective and discretionary one that has no

solid foundation. As it stands, the standard for disclosure

can easily shift depending upon the politics of the day. In

short, the circuit’s analysis is two parts, the first grants

almost complete deference to an incumbent President, and

the second is a court’s evaluation of whether the incident

justifying the request is “bad enough” to permit the

incumbent President and Congress to rupture the former

President’s executive privilege.

This is not an analysis based in law; it is a subjective

standard ripe for political abuse by the incumbent

President and dependent upon the political perspective

of jurists who will decide future disputes. The analysis is

not just wrong, it is dangerous and it will unnecessarily

result in a further politicized judiciary. Courts should

avoid adopting rubrics that force them to make value based

determinations regarding the degree of gravity assigned

to political controversies. It cannot remain the method by

which executive privilege stands or falls.

The court below dismissed President Trump’s

concern that “going forward, incumbent Presidents will

27

indiscriminately decline to assert executive privilege

over a former President’s records whenever they are of

the opposite political party.” Id. at 54a. The court said

the “possibility of mutually assured destruction of the

privilege cuts against the risk of heedless disclosures.”

Id. But that balance cannot be maintained after one party

has already launched the first strike. It is imperative that

this Court recalibrate the Circuit’s flawed and subjective

analysis.

Instead, the correct and legally rooted analysis is

objective and includes clear factors for courts to weigh.

Certainly, the incumbent President’s determination is one

factor that carries real weight, but other factors include

the breadth of the requests (here, extremely broad), the

time since the President has been out of office (here,

only 10 months), and whether the documents will remain

confidential (here, the records would be made public).

Then the Court should look at the specific need of the

party seeking to invade the privilege2 and ask whether

the justification is significant enough to invite the serious

consequences that flow from an involuntary invasion of

executive privilege.

The current disagreement between an incumbent

President and his predecessor highlights a serious

peril to meaningful executive privilege and the ability

of Presidents and their advisers to reliably make and

receive full and frank advice, without concern that

2. The circuit court also misapplied GSA by placing the burden

on President Trump to defend the privilege, when, in fact, the burden

is on the parties seeking to invade it.

28

communications will be publicly released within a year

of an administration’s conclusion. Common sense, as

well as case law, United States v. Nixon; Nixon v. GSA,

make clear these concerns are important and very real.

President Trump is entitled to an injunction, and this

Republic is entitled to an objective test.

D.

The equitable injunctive factors favor President

Trump and weigh heavily in favor of review by

the Court.

President Trump will be irreparably harmed absent

an injunction. Both Congress and this Court specifically

recognize the rights of former Presidents to challenge

the production of privileged presidential records. See 44

U.S.C. § 2204; GSA, 433 U.S. at 439. The executive branch

also recognizes the right to bring such an action through

the promulgation of regulations. 36 C.F.R. § 1270.44.

Both the Constitution and the Presidential Records Act

give former Presidents a clear right to protect their

confidential records from premature dissemination. This

case presents a clear threat to that right and it’s invasion

would be a pedagogical example of irreparable harm.

All three branches have spoken clearly: a former

President may challenge an invasion of executive privilege

and the release of his presidential records. As the D.C.

Circuit correctly noted, “there is no question that the

former President can file suit to press his claim of

executive privilege” and his assertion of privilege is of

“constitutional stature.” App. A, at 38a (citing GSA, 433

U.S. 425, 439 (1977). Further, the D.C. Circuit correctly

noted the Presidential Records Act provides for assertions

of executive privilege by former Presidents. App. A, at

34a-35a (citing 44 U.S.C. §2208).

29

Executive privilege is “fundamental to the operation

of Government and inextricably rooted in the separation

of powers under the Constitution.” Nixon, 418 U.S. at

708. The assertion of executive privilege in this instance

is President Trump’s constitutional right, and this

Court has stated that a deprivation of constitutional

rights “unquestionably constitutes irreparable injury”

for purposes of injunctive relief. Elrod v. Burns, 427

U.S. 347, 373 (1976) (holding that First Amendment

violations constitute irreparable injury); Am. Trucking

Associations, Inc. v. City of Los Angeles, 559 F.3d 1046,

1059 (9th Cir. 2009) (stating that “constitutional violations

cannot be adequately remedied through damages and

therefore generally constitute irreparable harm”). This

harm would not only befoul President Trump’s interests in

maintaining the confidentiality of his presidential records,

but the harm would extend to future Presidents as well.

This violation would be a substantial blow to the institution

of the presidency.

If the Court does not intervene, the Archivist will

give the Committee confidential, privileged information.

Once disclosed, the information loses its confidential and

privileged nature. See Council on American-Islamic

Relations v. Gaubatz, 667 F. Supp. 2d 67, 76 (D.D.C. 2009).

If such material is disclosed before President Trump has

had a proper opportunity for appellate review, “the very

right sought to be protected has been destroyed.” In re

Sealed Case No. 98-3077, 151 F.3d 1059, 1065 (D.C. Cir.

1998) (quoting In re Ford Motor Co., 110 F.3d 954, 963

(3d Cir. 1997)); see also Providence Journal Co. v. FBI,

595 F.2d 889, 890 (1st Cir. 1979) (“Once the documents

are surrendered,” in other words, “confidentiality

will be lost for all time. The status quo could never be

30

restored.”); PepsiCo, Inc. v. Redmond, 1996 WL 3965, at

*30 (N.D. Ill. 1996) (“[J]ust as it is impossible to unring

a bell, once disclosed, . . . confidential information lose[s]

[its] secrecy forever”); Metro. Life Ins. Co. v. Usery, 426

F. Supp. 150, 172 (D.D.C. 1976) (“Once disclosed, such

information would lose its confidentiality forever.”). This

decision will set a precedent that will either shore up the

foundations of executive privilege or shatter it. President

Trump and his advisers relied upon the expectation of

executive confidentiality while in office, the time when the

communications and records at issue were created. That

reliance interest is substantial and its evisceration would

be irreparably harmful.

The D.C. Circuit’s reasoning regarding irreparable

harm is flawed. Much of the D.C. Circuit opinion attempts

to cast President Biden’s refusal to assert executive

privilege as a continuation of a long line of presidential

refusals to assert the privilege. See App. A, at 45a-46a.

The D.C. Circuit opinion declares that “President

Biden’s judgment is of a piece with decisions made by

other Presidents to waive privilege in times of pressing

national need.” Id. at 45a. The opinion cites President

Nixon’s waiver of privilege over records relating to the

Watergate controversy, President Reagan’s waiver of

privilege over records relating to the Iran-Contra scandal

and his personal diary, President George W. Bush’s waiver

of privilege over documents relating to the 9/11 attacks,

and President Trump’s waiver of privilege over former

FBI director James Comey’s testimony that included

his conversations with President Trump. Id. All these

examples concern Presidents deciding whether to exert

privilege over their own records. None of the examples

cited by the D.C. Circuit are analogous to the present case,

31

and even if they were, parties are free to exert privilege

over some matters and waive it with respect to others.

Supposed precedent of prior Presidents waiving privilege

over their own records have no bearing on this question.

An accommodation in one instance does not support a

forced waiver in another.

The balance of the equities and public interest also

favor an injunction. “These factors merge when the

Government is the opposing party.” Nken v. Holder, 556

U.S. 418, 435 (2009). Initially, it is always equitable and

in the public interest to enforce the Constitution. Gordon

v. Holder, 721 F.3d 638, 653 (2013). The D.C. Circuit “has

clearly articulated that the public has an interest in the

government maintaining procedures that comply with

constitutional requirements.” Ass’n of Cmty. Orgs. for

Reform Now (ACORN) v. FEMA, 463 F. Supp. 2d 26,

36 (D.D.C. 2006) (citing O’Donnell Const. Co. v. Dist.

of Columbia, 963 F.2d 420, 429 (D.C. Cir. 1992)). The

Constitution entrusts the courts to determine whether

the Committee has exceeded its constitutional authority.

Permitting the Committee to evade judicial review is

not in the public interest, nor is granting Congress the

ability to rifle through any and all documents of a former

President merely because Congress and an incumbent

President authorizes it.

The balance of equities is served by an injunction

because President Trump’s injury—the mootness of

important constitutional and statutory rights—outweighs

any injury the Committee would suffer by restriction

of President Trump’s personal records. Unlike the

irreparable harm President Trump will suffer absent

interim relief, Respondents would suffer virtually no

32

harm by delaying production while the parties litigate

the request’s validity. And while Congress is certainly

free to set its own timeframe to conduct its business,

the Electoral Counts Act will not be triggered for three

years; Congress has time to allow the court to consider

this expedited petition while it continues to legislate.

In addition, the records sought are in the custody and

control of NARA and, therefore, are being preserved as a

matter of law. The Committee’s “interest in receiving the

records immediately” thus “poses no threat of irreparable

harm to them.” Shapiro v. U.S. Dep’t of Justice, 2016 WL

3023980, at *7 (D.D.C. May 25, 2016). Interim relief only

“postpones the moment of disclosure . . . by whatever

period of time may be required” to adjudicate the merits

of President Trump’s claims finally. Providence Journal,

595 F.2d 889, 890; see Fund for Animals v. Norton,

281 F. Supp. 2d 209, 222 (D.D.C. 2003) (rejecting the

government’s claim of harm in having its action “delayed

for a short period of time pending resolution of this case

on the merits”). 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.

Further, the public interest is served by injunctive

relief because the Republic itself has a strong interest in

the effective operation of the Executive Branch without the

President’s political interests interfering in that operation.

This political clash between an incumbent President and

the former Presidents is likely why this Court provided

former Presidents a right to assert executive privilege.

Congress’s motivations are at the heart of the test

developed in Mazars. They are precisely why the GSA

33

Court grants the former President the “right to be heard,”

and why the PRA allows former Presidents a judicial

remedy. GSA, 433 U.S at 449; Nixon, 418 U.S. at 713; 44

U.S.C. § 2204; see also 36 C.F.R. §1270.44 (stating the

Archivist discloses records after incumbent denial of the

privilege only if no court order is issued).

III. This case presents an appropriate vehicle to resolve

these weighty issues

President Trump’s objection to the production of his

presidential records to political rivals provides the Court

with a strong vehicle to address an important problem

that is likely to recur in an increasingly partisan political

climate. The Respondents and the courts below announced

a rule giving Congress carte blanche authority to demand

a former President’s records, when the incumbent of their

same political party consents. The lack of a meaningful

limiting principle will encourage future congresses to

escalate such requests, especially when at least one house

of Congress and the presidency are controlled by the same

political party. If the Court does not promptly confront

the issue and adopt a clear and politically neutral test, this

unprecedented tactic will become the new norm.

The facts here provide the Court with an opportunity

to make a clean and objective ruling. The Committee’s

records request is sweeping and broad; it has declined to

either meaningfully limit the areas of inquiry based upon

a legitimate legislative purpose or seek the information

elsewhere. This clear overreach can be cleanly and

objectively rejected.

34

While the Committee has argued that its work is

pressing and time sensitive, the fast paced nature of this

litigation allows the Court to resolve the case expeditiously.

Indeed, it could be argued this term, should the Court’s

docket allow. Moreover, the Committee has declined to

state any specific timetable for its report or any resulting

legislation, even when directly asked by the Circuit at oral

argument. Since more tranches of records are expected

to be in controversy, as the National Archives continues

to process the records of the Trump Administration, the

resolution of this matter by the Court will expedite the

consideration of future disputes over the Committee’s

requests.

Conclusion

The petition for a writ of certiorari should be granted.

Respectfully submitted,

Justin Clark

Elections, LLC

1050 Connecticut Avenue, NW,

Suite 500

Washington, DC 20036

(202) 987-9944

Jesse R. Binnall

Counsel of Record

Binnall Law Group, PLLC

717 King Street, Suite 200

Alexandria, VA 22314

(703) 888-1943

jesse@binnall.com

Counsel for Petitioner

APPENDIX

1a

APPENDIX A — Appendix

OPINIONAOF THE UNITED

STATES COURT OF APPEALS FOR THE

DISTRICT OF COLUMBIA CIRCUIT,

FILED DECEMBER 9, 2021

UNITED STATES COURT OF APPEALS

FOR THE DISTRICT OF COLUMBIA CIRCUIT

No. 21-5254

DONALD J. TRUMP, IN HIS CAPACITY AS THE

45TH PRESIDENT OF THE UNITED STATES,

Appellant,

v.

BENNIE G. THOMPSON, IN HIS OFFICIAL

CAPACITY AS CHAIRMAN OF THE UNITED

STATES HOUSE SELECT COMMITTEE TO

INVESTIGATE THE JANUARY 6TH ATTACK ON

THE UNITED STATES CAPITOL, et al.,

Appellees.

November 30, 2021, Argued;

December 9, 2021, Decided

Appeal from the United States District Court

for the District of Columbia.

(No. 1:21-cv-02769).

Before: MILLETT, WILKINS, and JACKSON,

Circuit Judges.

2a

Appendix A

Millett, Circuit Judge: On January 6, 2021, a mob

professing support for then-President Trump violently

attacked the United States Capitol in an effort to prevent

a Joint Session of Congress from certifying the electoral

college votes designating Joseph R. Biden the 46th

President of the United States. The rampage left multiple

people dead, injured more than 140 people, and inflicted

millions of dollars in damage to the Capitol.1 Then-Vice

President Pence, Senators, and Representatives were all

forced to halt their constitutional duties and flee the House

and Senate chambers for safety.

T he House of Represent atives subsequently

established the Select Committee to Investigate the

January 6th Attack on the United States Capitol, and

charged it with investigating and reporting on the “facts,

circumstances, and causes relating to” the January

6th attack on the Capitol, and its “interference with

the peaceful transfer of power[.]” H.R. Res. 503, 117th

Cong. § 3(1) (2021). The House Resolution also tasked the

January 6th Committee with, among other things, making

“legislative recommendations” and proposing “changes

in law, policy, procedures, rules, or regulations” both to

1. S ta f f R e p. of S. C omm . on H om el a n d S e c u r i t y &

G overnmental A ffs. & S. Comm. on Rules & A dmin., 117th Cong.,

Examining the U.S. Capitol Attack: A Review of the Security,

Planning, and Response Failures on January 6, at 29 (June 8, 2021)

(“Capitol Attack Senate Report”); Hearing on Health and Wellness

of Employees and State of Damages and Preservation as a Result

of January 6, 2021 Before the Subcomm. on the Legis. Branch of

the H. Comm. on Appropriations (“House Hearing”), 117th Cong.,

at 1:25:40-1:26:36 (Feb. 24, 2021) (statement of J. Brett Blanton,

Architect of the Capitol), https://perma.cc/XS7N-MRG8.

3a

Appendix A

prevent future acts of such violence and to “improve the

security posture of the United States Capitol Complex[.]”

Id. § 4(b)(1), (c)(2).

As relevant here, the January 6th Committee sent

a request to the Archivist of the United States under

the Presidential Records Act, 44 U.S.C. § 2205(2)(C),

seeking the expeditious disclosure of presidential records

pertaining to the events of January 6th, the former

President’s claims of election fraud in the 2020 presidential

election, and other related documents.

This preliminary injunction appeal involves only a

subset of those requested documents over which former

President Trump has claimed executive privilege, but

for which President Biden has expressly determined

that asserting a claim of executive privilege to withhold

the documents from the January 6th Committee is not

warranted. More specifically, applying regulations adopted

by the Trump Administration, President Biden concluded

that a claim of executive privilege as to the specific

documents at issue here is “not in the best interests of

the United States,” given the “unique and extraordinary

circumstances” giving rise to the Committee’s request,

and Congress’s “compelling need” to investigate “an

unprecedented effort to obstruct the peaceful transfer

of power” and “the most serious attack on the operations

of the Federal Government since the Civil War.” Letter

from Dana A. Remus, Counsel to the President, to David

Ferriero, Archivist of the United States (Oct. 8, 2021), J.A.

107-108 (“First Remus Ltr.”); see also Letter from Dana

A. Remus, Counsel to the President, to David Ferriero,

4a

Appendix A

Archivist of the United States (Oct. 8, 2021), J.A. 113

(“Second Remus Ltr.”); Letter from Dana A. Remus,

Counsel to the President, to David Ferriero, Archivist

of the United States (Oct. 25, 2021), J.A. 173-174 (“Third

Remus Ltr.”).

The central question in this case is whether, despite

the exceptional and imperative circumstances underlying

the Committee’s request and President Biden’s decision,

a federal court can, at the former President’s behest,

override President Biden’s decision not to invoke privilege

and prevent his release to Congress of documents in

his possession that he deems to be needed for a critical

legislative inquiry. On the record before us, former

President Trump has provided no basis for this court to

override President Biden’s judgment and the agreement

and accommodations worked out between the Political

Branches over these documents. Both Branches agree

that there is a unique legislative need for these documents

and that they are directly relevant to the Committee’s

inquiry into an attack on the Legislative Branch and

its constitutional role in the peaceful transfer of power.

More specifically, the former President has failed to

establish a likelihood of success given (1) President Biden’s

carefully reasoned and cabined determination that a

claim of executive privilege is not in the interests of the

United States; (2) Congress’s uniquely vital interest in

studying the January 6th attack on itself to formulate

remedial legislation and to safeguard its constitutional

and legislative operations; (3) the demonstrated relevance

of the documents at issue to the congressional inquiry;

(4) the absence of any identified alternative source for

5a

Appendix A

the information; and (5) Mr. Trump’s failure even to

allege, let alone demonstrate, any particularized harm

that would arise from disclosure, any distinct and

superseding interest in confidentiality attached to these

particular documents, lack of relevance, or any other

reasoned justification for withholding the documents.

Former President Trump likewise has failed to establish

irreparable harm, and the balance of interests and equities

weigh decisively in favor of disclosure. 2

For those reasons, we affirm the district court’s

judgment denying a preliminary injunction as to those

documents in the Archivist’s first three tranches over

which President Biden has determined that a claim of

executive privilege is not justified.

I

A

On November 3, 2020, Americans elected Joseph

Biden as President, giving him 306 electoral college

votes. Then-President Trump, though, refused to concede,

claiming that the election was “rigged” and characterized

by “tremendous voter fraud and irregularities[.]”

President Donald J. Trump, Statement on 2020 Election

Results at 0:34-0:46, 18:11-18:15, C-SPAN (Dec. 2, 2020),

2. Given former President Trump’s failure to meet his burden,

we need not decide to what extent a court could, after a sufficient

showing of congressional need, second guess a sitting President’s

judgment that invoking privilege is not in the best interests of the

United States.

6a

Appendix A

https://w w w.c-span.org/video /?506975-1/presidenttrump-statement-2020-election-results (last accessed

Dec. 7, 2021). Over the next several weeks, President

Trump and his allies filed a series of lawsuits challenging

the results of the election. Current Litigation, ABA:

Standing Comm. on Election Law (April 30, 2021), https://

perma.cc/9CRN-2464. The courts rejected every one of

the substantive claims of voter fraud that was raised. See,

e.g., Donald J. Trump for President, Inc. v. Secretary

of Pennsylvania, 830 F. App’x 377, 381 (3d Cir. 2020)

(“[C]alling an election unfair does not make it so. Charges

require specific allegations and then proof. We have

neither here.”).

As required by the Twelfth Amendment to the

Constitution and the Electoral Count Act, 3 U.S.C. § 15,

a Joint Session of Congress convened on January 6, 2021

to certify the results of the election. 167 CONG. REC.

H75-H85 (daily ed. Jan. 6, 2021). In anticipation of that

event, President Trump had sent out a Tweet encouraging

his followers to gather for a “[b]ig protest in D.C. on

January 6th” and to “[b]e there, will be wild!” Donald

Trump (@realDonaldTrump), T witter (Dec. 19, 2020,

1:42 AM) (“Statistically impossible to have lost the 2020

Election.”).

Shortly before noon on January 6th, President Trump

took the stage at a rally of his supporters on the Ellipse,

just south of the White House. J.A. 180. During his more

than hour-long speech, President Trump reiterated his

claims that the election was “rigged” and “stolen,” and

urged then-Vice President Pence, who would preside

7a

Appendix A

over the certification, to “do the right thing” by rejecting

various States’ electoral votes and refusing to certify

the election in favor of Mr. Biden. See Donald J. Trump,

Rally on Electoral College Vote Certification at 3:33:053:33:10, 3:33:32-3:33:54, 3:37:19-3:37:29, C-SPAN (Jan.

6, 2021), https://www.c-span.org/video/?507744-1/rallyelectoral-college-vote-certification (last accessed Dec. 7,

2021) (“January 6th Rally Speech”). Toward the end of

the speech, President Trump announced to his supporters

that “we’re going to walk down Pennsylvania Avenue * * *

to the Capitol and * * * we’re going to try and give our

Republicans * * * the kind of pride and boldness that they

need to take back our country.” Id. at 4:42:00-4:42:32.

Urging the crowd to “demand that Congress do the right

thing and only count the electors who have been lawfully

slated[,]” he warned that “you’ll never take back our

country with weakness” and declared “[w]e fight like hell

and if you don’t fight like hell, you’re not going to have a

country anymore.” Id. at 3:47:20-3:47:42, 4:41:17-4:41:33.

Shortly after the speech, a large crowd of President

Trump’s supporters—including some armed with weapons

and wearing full tactical gear—marched to the Capitol

and violently broke into the building to try and prevent

Congress’s certification of the election results. See Capitol

Attack Senate Report at 23, 27-29. The mob quickly

overwhelmed law enforcement and scaled walls, smashed

through barricades, and shattered windows to gain access

to the interior of the Capitol. Id. at 24-25. Police officers

were attacked with chemical agents, beaten with flag

poles and frozen water bottles, and crushed between doors

and throngs of rioters. Id. at 28-29; Hearing on the Law

8a

Appendix A

Enforcement Experience on January 6th Before the H.

Select Comm. to Investigate the January 6th Attack on the

U.S. Capitol, 117th Cong., at 2 (July 27, 2021) (statement

of Sgt. Aquilino A. Gonell, U.S. Capitol Police).

As rioters poured into the building, members of the

House and Senate, as well as Vice President Pence, were

hurriedly evacuated from the House and Senate chambers.

Capitol Attack Senate Report at 25-26. Soon after, rioters

breached the Senate chamber. Id. In the House chamber,

Capitol Police officers “barricaded the door with furniture

and drew their weapons to hold off rioters.” Id. at 26.

Some members of the mob built a hangman’s gallows on

the lawn of the Capitol, amid calls from the crowd to hang

Vice President Pence. 3

Even with reinforcements from the D.C. National

Guard, the D.C. Metropolitan Police Department, Virginia

State Troopers, the Department of Homeland Security,

and the FBI, Capitol Police were not able to regain control

of the building and establish a security perimeter for

hours. Capitol Attack Senate Report at 26. The Joint

Session reconvened late that night. It was not until 3:42

a.m. on January 7th that Congress officially certified

Joseph Biden as the winner of the 2020 presidential

election. Id.

3. 167 Cong. Rec. E1133 (daily ed. Oct. 22, 2021) (statement

of Rep. Sheila Jackson Lee); 167 Cong. Rec. H2347 (daily ed. May

14, 2021) (statement of Rep. Steve Cohen); Peter Baker & Sabrina

Tavernise, One Legacy of Impeachment: The Most Complete Account

So Far of Jan. 6, N.Y. Times (Feb. 13, 2021), https://perma.cc/2Z475XHX.

9a

Appendix A

The events of January 6, 2021 marked the most

significant assault on the Capitol since the War of

1812. 4 The building was desecrated, blood was shed,

and several individuals lost their lives. See Capitol

Attack Senate Report at 27-29. Approximately 140 law

enforcement officers were injured, and one officer who

had been attacked died the next day. Id. at 29. In the

aftermath, workers labored to sweep up broken glass,

wipe away blood, and clean feces off the walls.5 Portions

of the building’s historic architecture were damaged or

destroyed, including “precious artwork” and “[s]tatues,

murals, historic benches and original shutters[.]” House

Hearing at 1 (statement of J. Brett Blanton, Architect of

the Capitol).

B

On June 30, 2021, the United States House of

Representatives created the Select Committee to

Investigate the January 6th Attack on the United States

Capitol. H.R. Res. 503. The House directed the Committee

to (1) “investigate the facts, circumstances, and causes

relating to the domestic terrorist attack on the Capitol,

including * * * influencing factors that contributed to”

it; (2) “identify, review, and evaluate the cause of and

4. Jess Bravin, U.S. Capitol Has a History of Occasional

Violence, but Nothing Like This, Wall St. J. (Jan. 6, 2021), https://

perma.cc/TPW2-9CD8; Press Release, Liz Cheney, Congresswoman,

House of Representatives, A Select Committee Is The Only

Remaining Option To Thoroughly Investigate January 6th (June

30, 2021), https://perma.cc/5RNC-Q6J3.

5. Baker & Tavernise, note 3, supra.

10a

Appendix A

the lessons learned” from the attack, including “the

structure, coordination, operational plans, policies, and

procedures of the Federal Government, * * * particularly

with respect to detecting, preventing, preparing for, and

responding to targeted violence and domestic terrorism”;

and (3) “issue a final report to the House containing such

findings, conclusions, and recommendations for corrective

measures * * * as it may deem necessary.” Id. § 4(a). Those

“corrective measures” include “changes in law, policy,

procedures, rules, or regulations” to (1) “prevent future

acts of violence * * * targeted at American democratic

institutions”; (2) “improve the security posture of the

United States Capitol Complex”; and (3) “strengthen the

security and resilience” of the United States’ “democratic

institutions[.]” Id. § 4(c).

The resolution expressly incorporates Rule XI of the

Rules of the House of Representatives, which empowers

the Committee “to require, by subpoena or otherwise,

the attendance and testimony of such witnesses and

the production of books, records, correspondence,

memoranda, papers, and documents as it considers

necessary,” including from “the President, and the Vice

President, whether current or former, in a personal or

official capacity, as well as the White House, the Office

of the President, the Executive Office of the President,

and any individual currently or formerly employed in the

White House, Office of the President, or Executive Office

of the President[.]” Rules of the U.S. House of Reps. (117th

Cong.) XI.2(m)(1)(B) & (m)(3)(D) (2021); see also H.R. Res.

§ 5(c).

11a

Appendix A

C

On August 25, 2021, pursuant to the Presidential

Records Act, 44 U.S.C. § 2205(2)(C), the January 6th

Committee requested that the United States Archivist

produce from the National A rchives documents,

communications, videos, photographs, and other media

generated within the White House on January 6, 2021 that

relate to the rally on the Ellipse, the march to the Capitol,

the violence at the Capitol, and the activities of President

Trump and other high-level Executive Branch officials that

day. Letter from Bennie G. Thompson, Chairman of the

January 6th Committee, to David Ferriero, Archivist of

the United States (Aug. 25, 2021), J.A. 33-44 (“Thompson

Ltr.”). The Committee also asked for calendars and

schedules documenting meetings or events attended

by President Trump, White House visitor records, and

call logs and telephone records from January 6th. J.A.

34-36. In addition, the Committee requested records

from specified time frames in 2020 and 2021 relating to

(1) efforts to contest the results of the 2020 presidential

election, (2) the security of the Capitol, (3) the planning of

protests, marches, rallies, or speeches in D.C. leading up

to January 6th, (4) information former President Trump

received regarding the results of the 2020 election and his

public messaging about those results, and (5) the transfer

of power from the Trump Administration to the Biden

Administration. J.A. 36-44.

“Given the urgent nature of [the] request,” the

Committee asked the A rchivist to “expedite [its]

consultation and processing times pursuant to * * *

36 C.F.R. § 1270.44(g).” Thompson Ltr., J.A. 33.

12a

Appendix A

On August 30, 2021, as provided by regulation, the

Archivist notified former President Trump that he had

identified a first tranche of 136 pages of responsive records

that he intended to disclose to the January 6th Committee.

J.A. 125; 36 C.F.R. § 1270.44(c).

President Biden was notified of that same planned

disclosure about a week later. J.A. 125; 36 C.F.R.

§ 1270.44(c). The Archivist later withdrew seven pages

from disclosure as non-responsive. J.A. 125. On October

8, 2021, the former President advised the Archivist that

he was asserting executive privilege over 46 of those

pages. J.A. 110-111, 126. The documents subject to Mr.

Trump’s assertion of privilege involve “daily presidential

diaries, schedules, [visitor logs], activity logs, [and] call

logs, * * * all specifically for or encompassing January 6,

2021[,]” “drafts of speeches, remarks, and correspondence

concerning the events of January 6, 2021[,]” and “three

handwritten notes concerning the events of January 6

from [former Chief of Staff Mark] Meadows’ files[.]” J.A.

129. Former President Trump also made “a protective

assertion of constitutionally based privilege with respect

to all additional records” to be produced. J.A. 111.

That same day, Counsel to President Biden informed

the Archivist that the President had “determined that an

assertion of executive privilege is not in the best interests

of the United States, and therefore is not justified as to

any of the Documents” in the first tranche. First Remus

Ltr., J.A. 107; 36 C.F.R. § 1270.44(d). The letter explained:

[T]he insurrection that took place on January

6, and the extraordinary events surrounding

13a

Appendix A

it, must be subject to a full accounting to

ensure nothing similar ever happens again.

Congress has a compelling need in service

of its legislative functions to understand the

circumstances that led to these horrific events.

The available evidence to date establishes

a sufficient factual predicate for the Select

Committee’s investigation: an unprecedented

effort to obstruct the peaceful transfer of

power, threatening not only the safety of

Congress and others present at the Capitol,

but also the principles of democracy enshrined

in our history and our Constitution. The

Documents shed light on events within the

White House on and about January 6 and bear

on the Select Committee’s need to understand

the facts underlying the most serious attack on

the operations of the Federal Government since

the Civil War.

T he s e a r e u n iq ue a nd e x t r a or d i n a r y

circumstances. 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.

14a

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First Remus Ltr., J.A. 107-108.

President Biden specified that his decision “applie[d]

solely” to the documents in the first tranche. First Remus

Ltr., J.A. 108. After President Trump asserted privilege

over some of the documents, the President advised that,

for the reasons already given, he would “not uphold the

former President’s assertion of privilege.” Second Remus

Ltr., J.A. 113.

Citing “the urgency of the Select Committee’s need for

the information,” President Biden instructed the Archivist

to provide the relevant pages to the Committee 30 days

after its notification to former President Trump. Second

Remus Ltr., J.A. 113; see 36 C.F.R. § 1270.44(f)(3), (g).

Accordingly, on October 13, 2021, the Archivist informed

former President Trump that, “as instructed by President

Biden,” he would disclose to the Committee the privileged

pages in the first tranche on November 12, 2021, “absent

any intervening court order[.]” J.A. 115; see 36 C.F.R.

§ 1270.44(f)(3). That same day, the Archivist disclosed to

the January 6th Committee the 90 pages from the first

tranche for which privilege was not claimed. J.A. 126.

On September 9, 2021, the Archivist informed former

President Trump that he intended to disclose a second

tranche of 742—later reduced to 739—responsive pages.

J.A. 127. President Biden was notified shortly thereafter.

J.A. 127. Counsel to the President later instructed the

Archivist to extend for one week the review period for

the second tranche. J.A. 127.

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Appendix A

On September 16 and 23, 2021, the A rchivist

notified former President Trump and President Biden,

respectively, of a third tranche of 146 pages. J.A. 127, 130.

Former President Trump subsequently claimed

privilege over 724 pages in the second and third tranches

combined. J.A. 127, 165-171. Those documents cover

“pages from multiple binders containing proposed talking

points for the Press Secretary * * * principally relating

to allegations of voter fraud, election security, and other

topics concerning the 2020 election[,]” “presidential

activity calendars and a related handwritten note for

January 6, 2021, and for January 2021 generally,” the

“draft text of a presidential speech for the January 6, 2021,

Save America March[,]” “a handwritten note from * * *

Meadows’ files listing potential or scheduled briefings

and telephone calls concerning the January 6 certification

and other election issues[,]” and “a draft Executive Order

on the topic of election integrity[.]” J.A. 130. They also

include “a memorandum apparently originating outside

the White House regarding a potential lawsuit by the

United States against several states President Biden

won[,]” “an email chain originating from a state official

regarding election-related issues[,]” “talking points on

alleged election irregularities in one Michigan county[,]”

“a document containing presidential findings concerning

the security of the 2020 presidential election and ordering

various actions[,]” and “a draft proclamation honoring the

Capitol Police and deceased officers Brian Sicknick and

Howard Liebengood, and related emails[.]” J.A. 130-131.

Several days later, President Biden advised the

Archivist that he would not assert executive privilege

16a

Appendix A

to prevent disclosure or uphold the former President’s

assertion of privilege for the identified documents in the

second and third tranches. The President again concluded

that an assertion of executive privilege “is not in the best

interests of the United States,” reiterating his reasoning

from the first letter. Third Remus Ltr., J.A. 173. Citing

“the urgency of the Select Committee’s need for the

information,” President Biden instructed the Archivist

to provide the contested pages to the Committee 30 days

after its notification of former President Trump, unless

ordered otherwise by a court. Third Remus Ltr., J.A. 174;

see 36 C.F.R. § 1270.44(f)(3), (g).

The letter to the Archivist also advised that, “[i]n the

course of an accommodation process between Congress

and the Executive Branch,” the Committee had agreed to

defer its request as to fifty pages of responsive records.

J.A. 128; Third Remus Ltr., J.A. 174.

On October 27, 2021, the Archivist advised former

President Trump that he would disclose the 724 pages

in the second and third tranches for which a claim of

privilege had been made to the January 6th Committee on

November 26, 2021, “absent any intervening court order.”

J.A. 176. The Archivist added that he would not provide

the documents that President Biden and the January 6th

Committee had agreed to set aside. J.A. 176.

The Archivist’s search for presidential records covered

by the Committee’s request is ongoing, and it “anticipates

providing multiple additional notifications * * * on a rolling

basis as it is able to locate responsive records.” J.A. 129.

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Appendix A

D

On October 18, 2021, former President Trump brought

suit in the United States District Court for the District

of Columbia to halt the disclosure of documents to the

January 6th Committee. He filed suit “solely in his official

capacity as a former President[,]” Compl. ¶ 20, J.A. 16,

asserting claims under the Presidential Records Act, its

regulations, the Declaratory Judgment Act, Executive

Order No. 13,489, and the Constitution. Compl. ¶ 1, J.A.

7. Former President Trump argued that the Committee’s

request seeks disclosure of records protected by executive

privilege and lacks a valid legislative purpose. Compl. ¶ 38,

49, 50, J.A. 23-24, 28-29. He sought a declaratory judgment

that the Committee’s request is invalid and unenforceable,

as well an injunction preventing the Committee “from

taking any actions to enforce the request[]” or “using * * *

any information obtained as a result of the request[]” and

barring the Archivist from “producing the requested

information[.]” Compl. ¶ 54, J.A. 30-31.

The next day, Mr. Trump filed a motion for a

preliminary injunction “prohibiting Defendants from

enforcing or complying with the Committee’s request.”

Pl.’s Mot. for Prelim. Inj. at 1, D. Ct. Dkt. 5. He argued that

he is likely to prevail on the ground that the Committee’s

request “ha[s] no legitimate legislative purpose” and seeks

“information that is protected by numerous privileges[,]”

id. at 2, and that the court was required to conduct an in

camera review of each assertedly privileged document,

Pl.’s Reply at 24, D. Ct. Dkt. 33. He also contended that

“the Republic” and “future Presidential administrations”

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would suffer irreparable harm if the records were

released. Mem. in Supp. of Pl.’s Mot. for Prelim. Inj. at

5-6 (“Prelim. Inj. Mem.”), D. Ct. Dkt. 5-1.

The district court denied the motion for a preliminary

injunction, ruling that former President Trump’s

“assertion of privilege is outweighed by President Biden’s

decision not to uphold the privilege,” and declining to

“second guess that decision by undertaking a documentby-document review[.]” J.A. 197. The court also said

that the Committee acted within its legislative authority

because its request involves “multiple subjects on which

legislation ‘could be had[.]’” J.A. 204 (quoting McGrain v.

Daugherty, 273 U.S. 135, 177, 47 S. Ct. 319, 71 L. Ed. 580

(1927)). The court added that the Committee needs the

documents to understand the “circumstances leading up

to January 6[,]” and to “identify effective reforms,” and

that “President Biden’s decision not to assert the privilege

alleviates any remaining concern that the requests are

overly broad.” J.A. 207.

As for irreparable injury, the district court found

that the former President had not identified any personal

interest threatened by production of the records, and that

his claim that disclosure would “gravely undermine the

functioning of the executive branch” was overtaken by

President Biden’s determination that the records could

safely be released, as well as the long history of past

Presidents waiving privilege when it was in the interests

of the United States to do so. J.A. 212-213. Lastly, with

respect to the balance of harms and public interest, the

court concluded that “discovering and coming to terms

19a

Appendix A

with the causes underlying the January 6 attack is a

matter of unsurpassed public importance[,]” and that

“the public interest lies in permitting—not enjoining—the

combined will of the legislative and executive branches[.]”

J.A. 214-215.

The district court subsequently denied Mr. Trump’s

request for an injunction pending appeal. D. Ct. Dkt. 43.

E

Former President Trump filed an appeal and a motion

for both an injunction pending appeal and expedited

briefing. Emergency Mot. for Admin. Inj. (Nov. 11, 2021).

That same day, this court administratively enjoined the

Archivist from releasing the records from the first three

tranches over which former President Trump had claimed

executive privilege, and set a highly expedited schedule

for the preliminary injunction appeal. Per Curiam Order

(Nov. 11, 2021).6

II

The district court exercised jurisdiction under 44

U.S.C. § 2204(e) and 28 U.S.C. § 1331. This court has

jurisdiction under 28 U.S.C. § 1292(a)(1).

6. The only privilege at issue in this appeal is the constitutionally

based presidential communications privilege. Mr. Trump has not

argued that any of the documents for which he has asserted privilege

are protected by common-law privileges, and his counsel told the

district court that there are no private attorney-client documents

among those ready for release. See Hearing Tr. 60:21-61:6, D. Ct.

Dkt. 41 (Nov. 10, 2021), J.A. 278-279.

20a

Appendix A

We review the district court’s denial of a preliminary

injunction for an abuse of discretion, its legal conclusions

de novo, and its factual findings for clear error. Make the

Road New York v. Wolf, 962 F.3d 612, 623, 447 U.S. App.

D.C. 352 (D.C. Cir. 2020).

III

While the underlying lawsuit challenges the full span

of the January 6th Committee’s request for presidential

records, this preliminary injunction appeal involves the

narrower question of whether former President Trump’s

assertion of executive privilege as to a subset of documents

in the Archivist’s first three tranches requires that those

documents be withheld from the Committee. See Oral Arg.

Tr. 12:25-13:6. Those are the only documents for which

President Biden has determined that withholding based

on executive privilege is not in the interests of the United

States, contrary to former President Trump’s position.

The Archivist’s search for responsive records is

ongoing, and there will almost certainly be documents in

future tranches over which former President Trump will

claim privilege. But at this early stage of the proceedings,

those potential claims of privilege over records in not-yetextant tranches have not yet been considered by President

Biden, nor been subject to interbranch negotiation

and accommodation. Any potential future claims are

neither ripe for constitutional adjudication nor capable

of supporting this preliminary injunction, since courts

should not reach out to evaluate a former President’s

executive privilege claim based on “future possibilities for

21a

Appendix A

constitutional conflict[.]” Nixon v. Administrator of Gen.

Servs., 433 U.S. 425, 444-445, 97 S. Ct. 2777, 53 L. Ed. 2d

867 (1977); see also Ashwander v. Tennessee Valley Auth.,

297 U.S. 288, 346-348, 56 S. Ct. 466, 80 L. Ed. 688 (1936)

(Brandeis, J., concurring) (“The Court will not anticipate

a question of constitutional law in advance of the necessity

of deciding it.”) (internal quotation marks and citation

omitted); cf. Plaut v. Spendthrift Farm, Inc., 514 U.S.

211, 217, 115 S. Ct. 1447, 131 L. Ed. 2d 328 (1995) (courts

should take “the narrower ground for adjudication of the

constitutional questions”).7

To understand the legal dispute, some background on

the constitutional interests at stake is in order.

Congress’s Investigative Power

Congress’s power to conduct investigations appears

nowhere in the text of the Constitution. Yet it is settled

law that Congress possesses “the power of inquiry” as

“an essential and appropriate auxiliary to the legislative

7. The Archivist provided a fourth tranche of roughly 551 pages

of responsive records to former President Trump and President Biden

in mid-October. See J.A. 128. As of now, former President Trump

and President Biden have reviewed only a small set of pages from

that tranche. See Records Related to the Request for Presidential

Records by the House Select Committee to Investigate the January

6th Attack on the United States Capitol, National A rchives (last

updated Nov. 19, 2021), https://www.archives.gov/foia/january-6committee (last accessed Dec. 7, 2021). Former President Trump

asserted executive privilege over six pages, and President Biden

has declined to support that assertion. Id. Former President Trump

has not raised any arguments about those six pages in this appeal.

22a

Appendix A

function.” McGrain, 273 U.S. at 175. That is because

“[w]ithout information, Congress would be shooting

in the dark, unable to legislate ‘wisely or effectively.’”

Trump v. Mazars USA, LLP, 140 S. Ct. 2019, 2031, 207

L. Ed. 2d 951 (2020) (quoting McGrain, 273 U.S. at 174).

Congress’s power to obtain information is “broad” and

“indispensable[,]” Watkins v. United States, 354 U.S.

178, 187, 215, 77 S. Ct. 1173, 1 L. Ed. 2d 1273, 76 Ohio

Law Abs. 225 (1957), and “encompasses inquiries into

the administration of existing laws, studies of proposed

laws, and ‘surveys of defects in our social, economic or

political system for the purpose of enabling the Congress

to remedy them,’” Mazars, 140 S. Ct. at 2031 (quoting

Watkins, 354 U.S. at 187).

Congress’s power to investigate has limits, however.

Because it is “justified solely as an adjunct to the legislative

process[,]” Watkins, 354 U.S. at 197, “a congressional

subpoena is valid only if it is ‘related to, and in furtherance

of, a legitimate task of Congress[,]’” Mazars, 140 S. Ct. at

2031 (quoting Watkins, 354 U.S. at 187). That generally

means it must “concern[] a subject on which ‘legislation

could be had.’” Eastland v. United States Servicemen’s

Fund, 421 U.S. 491, 506, 95 S. Ct. 1813, 44 L. Ed. 2d 324

(1975) (quoting McGrain, 273 U.S. at 177).

Relatedly, “Congress may not issue a subpoena for the

purpose of ‘law enforcement,’ because ‘those powers are

assigned under our Constitution to the Executive and the

Judiciary.’” Mazars, 140 S. Ct. at 2032 (quoting Quinn v.

United States, 349 U.S. 155, 161, 75 S. Ct. 668, 99 L. Ed.

964 (1955)). Likewise, “there is no congressional power to

expose for the sake of exposure.” Watkins, 345 U.S. at 200.

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Appendix A

Finally, “recipients of legislative subpoenas * * * have

long been understood [by the courts] to retain common

law and constitutional privileges with respect to certain

materials, such as * * * governmental communications

protected by executive privilege.” Mazars, 140 S. Ct. at

2032.

Because “Congress’s responsibilities extend to ‘every

affair of government[,]’” its “inquiries might involve the

President in appropriate cases[.]” Mazars, 140 S. Ct. at

2033 (quoting United States v. Rumely, 345 U.S. 41, 43,

73 S. Ct. 543, 97 L. Ed. 770 (1953)).

“Historically, disputes over congressional demands

for presidential documents” have not involved the courts

but, instead, “have been hashed out in the hurly-burly,

the give-and-take of the political process between the

legislative and the executive.” Mazars, 140 S. Ct. at 2029

(internal quotation marks and citation omitted).

But when disputes between the President and

Congress over records requests have made their way to

court, courts have employed carefully tailored balancing

tests that weigh the competing constitutional interests.

See Mazars, 140 S. Ct. at 2035-2036 (asking whether a

subpoena for a President’s personal records is “related

to, and in furtherance of, a legitimate task of Congress”

in that (1) the legislative purpose warrants a request for

a President’s records in particular, (2) the subpoena is

not overbroad, (3) Congress has adequately identified a

valid legislative purpose, and (4) the subpoena would not

unduly burden the President) (quoting Watkins, 345 U.S.

24a

Appendix A

at 187); Senate Select Comm. on Presidential Campaign

Activities v. Nixon, 498 F.2d 725, 731, 162 U.S. App. D.C.

183 (D.C. Cir. 1974) (weighing a President’s assertion

of privilege against whether “subpoenaed evidence is

demonstrably critical to the responsible fulfillment of

the Committee’s functions”); cf. United States v. Nixon,

418 U.S. 683, 713, 94 S. Ct. 3090, 41 L. Ed. 2d 1039 (1974)

(“The generalized assertion of privilege must yield to

the demonstrated, specific need for evidence in a pending

criminal trial.”). None of those tests, though, have been

applied to resolve a privilege dispute between a former

President and the joint judgment of the incumbent

President and the Legislative Branch.

Executive Privilege

The canonical form of executive privilege, and the

one at issue here, is the presidential communications

privilege. That privilege allows a President to protect

from disclosure “documents or other materials that reflect

presidential decisionmaking and deliberations and that

the President believes should remain confidential.” In re

Sealed Case, 121 F.3d 729, 744, 326 U.S. App. D.C. 276

(D.C. Cir. 1997); see United States v. Nixon, 418 U.S. at

705. The privilege applies not only to materials viewed by

the President directly, but also to records “solicited and

received by the President or [the President’s] immediate

White House advisers who have broad and significant

responsibility” for advising the President. Judicial Watch,

Inc. v. Department of Justice, 365 F.3d 1108, 1114, 361 U.S.

App. D.C. 183 (D.C. Cir. 2004) (internal quotation marks

and citation omitted).

25a

Appendix A

T h is president ia l pr iv i lege, l i ke Cong ress’s

investigative power, is not mentioned in the text of

the Constitution. Nonetheless, “presidential claims to

such a power go as far back as the early days of the

Republic[,]” 26A Charles A lan Wright et al., Federal

Practice & Procedure Evidence § 5673 (1st ed. 2021),

and the Supreme Court has concluded that “the silence

of the Constitution on this score is not dispositive,”

United States v. Nixon, 418 U.S. at 705 n.16. Instead, an

implied executive privilege “derives from the supremacy

of the Executive Branch within its assigned area of

constitutional responsibilities,” Nixon v. GSA, 433 U.S. at

447, is “fundamental to the operation of Government[,] and

[is] inextricably rooted in the separation of powers under

the Constitution,” United States v. Nixon, 418 U.S. at 708.

The executive privilege is just that—a privilege held by

the Executive Branch, “not for the benefit of the President

as an individual, but for the benefit of the Republic.” Nixon

v. GSA, 433 U.S. at 449 (citation omitted). Because “[a]

President and those who assist him must be free to explore

alternatives in the process of shaping polices and making

decisions and to do so in a way many would be unwilling

to express except privately,” United States v. Nixon, 418

U.S. at 708, the privilege “safeguards the public interest

in candid, confidential deliberations within the Executive

Branch,” Mazars, 140 S. Ct. at 2032.

But the executive privilege is a qualified one; it is

not “absolute[.]” United States v. Nixon, 418 U.S. at 707.

Executive privilege may be overcome by “a strong showing

of need by another institution of government[.]” Senate

Select Comm., 498 F.2d at 730; see also United States

26a

Appendix A

v. Nixon, 418 U.S. at 707. And the privilege may give

way in the face of other “strong constitutional value[s,]”

Dellums v. Powell, 561 F.2d 242, 247, 182 U.S. App. D.C.

244 (D.C. Cir. 1977), such as “the fundamental demands

of due process of law” in criminal trials, United States

v. Nixon, 418 U.S. at 713; see also Protect Democracy

Project, Inc. v. National Security Agency, 10 F.4th 879,

886 (D.C. Cir. 2021).

Despite its unquestioned significance, executive

privilege also can be waived. The historical record

documents numerous instances in which Presidents have

waived executive privilege in times of pressing national

need. See page 41, infra (providing examples).

The privilege, like all other Article II powers, resides

with the sitting President. Nevertheless, in Nixon v. GSA,

the Supreme Court held that former Presidents retain for

some period of time a right to assert executive privilege

over documents generated during their administrations.

433 U.S. at 449, 451. The Court held that this residual

right protects only “the confidentiality required for the

President’s conduct of office[,]” rather than any personal

interest in nondisclosure. Id. at 448.

In addition, when it comes to evaluating the impact on

the Executive Branch of disclosing presidential materials,

the Supreme Court was explicit that the incumbent

President is “in the best position to assess the present

and future needs of the Executive Branch[.]” Nixon v.

GSA, 433 U.S. at 449. 8

8. Like the Supreme Court, we treat the terms “presidential

privilege,” “presidential communications privilege,” and “executive

27a

Appendix A

The Management of Presidential Records:

Statutory Provisions

Starting with George Washington, “Presidents

exercised complete dominion and control over their

presidential papers” after leaving office. Nixon v. United

States, 978 F.2d 1269, 1277, 298 U.S. App. D.C. 249 (D.C.

Cir. 1992). This tradition “made for a highly idiosyncratic

if not entirely unhappy record of preserving the papers

of United States Presidents.” National Study Comm’n on

Records & Documents of Fed. Officials, Memorandum

of Findings on Existing Custom or Law, Fact and Opinion

3 (undated), reprinted in Presidential Records Act of

1978: Hearings on H.R. 10998 and Related Bills Before

a Subcomm. of the H. Comm. on Gov’t Operations, 95th

Cong. 467, 469 (1978).

Following the Watergate scandal and the resignation

of President Richard Nixon, Congress passed the

Presidential Recordings and Materials Preservation Act

(“Preservation Act”), which focused exclusively on former

President Nixon’s tape recordings, papers, and other

historical materials from his term in office. See Pub. L. No.

93-526, § 101, 88 Stat. 1695 (1974). The Preservation Act

required the General Services Administrator to “receive,

retain, or make reasonable efforts to obtain, complete

possession and control of” those historical materials,

and make them publicly “available, subject to any rights,

defenses, or privileges which the Federal Government or

privilege” as interchangeable for purposes of this case. See Nixon

v. GSA, 433 U.S. at 446 n.9; see also Dellums, 561 F.2d at 245 n.8.

28a

Appendix A

any person may invoke, for use in any judicial proceeding

or otherwise subject to court subpena [sic] or other legal

process.” Id. §§ 101, 102, 88 Stat. at 1695-1696; see 44

U.S.C. § 2111 note.9

Four years later, Congress enacted the Presidential

Records Act of 1978. That Act provides that, as of

January 21, 1981, the United States “shall reserve and

retain complete ownership, possession, and control of

Presidential records.” 44 U.S.C. § 2202 & note. The Act

defines “Presidential records” as:

[D]ocumentary materials, or any reasonably

segregable portion thereof, created or received

by the President, the President’s immediate

staff, or a unit or individual of the Executive

Office of the President whose function is to

advise or assist the President, in the course

of conducting activities which relate to or

have an effect upon the carrying out of the

constitutional, statutory, or other official or

ceremonial duties of the President.

Id. § 2201(2). “[P]ersonal records” of a President, defined

as documentary materials “of a purely private or nonpublic

character which do not relate to or have an effect upon

9. The A rchivist of the National A rchives and Records

Administration replaced the Administrator of the General Services

Administration in 1984. See Public Citizen v. Burke, 843 F.2d 1473,

1475, 269 U.S. App. D.C. 145 (D.C. Cir. 1988); National Archives and

Records Administration Act of 1984, Pub. L. No. 98-497, § 103(b)(2),

98 Stat. 2280, 2283.

29a

Appendix A

the carrying out of the constitutional, statutory, or other

official or ceremonial duties of the President[,]” are

excluded from regulation. Id. § 2201(3).

Under the Presidential Records Act, once a President’s

time in office concludes, the “Archivist of the United States

shall assume responsibility for the custody, control, and

preservation of, and access to, the Presidential records

of that President.” 44 U.S.C. § 2203(g)(1). The Archivist

has “an affirmative duty to make such records available to

the public as rapidly and completely as possible consistent

with the provisions” of the Presidential Records Act. Id.

§ 2203(g)(1).

The Act provides former Presidents with some

protection against public disclosure. Specifically, the

Act allows a President, when leaving office, to restrict

for up to twelve years public access to records that (1)

are classified and involve national defense or foreign

policy, (2) relate to appointments to public office, (3) are

exempt from disclosure under certain federal statutes, (4)

contain trade secrets or other privileged or confidential

commercial or financial information obtained from a

person, (5) constitute “confidential communications

requesting or submitting advice, between the President

and the President’s advisers, or between such advisers[,]”

or (6) personnel, medical, and similar files implicating

personal privacy. 44 U.S.C. § 2204(a) & (a)(1)-(a)(6); see

also 36 C.F.R. § 1270.40(a).

The Act tasks the Archivist with properly designating

“[a]ny Presidential record or reasonably segregable

30a

Appendix A

portion thereof containing information within a category

restricted by the President[,]” and preventing public

access to those documents until the appropriate time.

44 U.S.C. § 2204(b)(1); see also 36 C.F.R. § 1270.40(c).

The Presidential Records Act precludes judicial review

of the Archivist’s designations “[d]uring the period of

restricted access[,]” except for “any action initiated by

the former President asserting that a determination made

by the Archivist violates the former President’s rights or

privileges.” 44 U.S.C. § 2204(b)(3), (e).

Relevant to this case, under the Presidential Records

Act, those restrictions on public access do not apply,

and the Archivist “shall” provide access to presidential

records, when the documents are:

• subpoenaed or subjected to other judicial process

by a court as part of a civil or criminal proceeding;

• requested by an incumbent President “if such

records contain information that is needed for

the conduct of current business of the incumbent

President’s office and that is not other w ise

available”; or

• requested by either House of Congress or a

committee acting within its jurisdiction and

the information is “needed for the conduct of its

business and [is] not otherwise available[.]”

44 U.S.C. § 2205(2)(A)-(C). Disclosure under this section

is “subject to any rights, defenses, or privileges which the

31a

Appendix A

United States or any agency or person may invoke[.]” Id.

at § 2205(2).

The Management of Presidential Records:

Regulatory Provisions

Under the Preservation Act, the National Archives

and Records Administration promulgated regulations

providing that the Archivist would decide which assertions

of “legal or constitutional right[s] or privilege[s]” would

“prevent or limit public access” to the presidential records

of former President Nixon. See 36 C.F.R. §§ 1275.26(g),

1275.44(a) (1987).

The Department of Justice’s Office of Legal Counsel

interpreted those regulations as requiring that “the

Archivist must and will honor any claim of executive

privilege asserted by an incumbent President, * * * [and]

that the Archivist must and will treat any claim by a

former President” in accordance with “the supervision and

control of the incumbent President.” Memorandum from

Charles J. Cooper, Assistant Attorney General, Office

of Legal Counsel, Department of Justice, to Robert P.

Bedell, Deputy Administrator, Office of Information and

Regulatory Affairs, Office of Management. and Budget

23-24, 26 (Feb. 18, 1986), reprinted in Review of Nixon

Presidential Materials Access Regulations: Hearing

Before a Subcomm. of the H. Comm. on Gov’t Operations,

99th Cong. 263-292 (1986) (“1986 OLC Memorandum”);

see Public Citizen v. Burke, 843 F.2d 1473, 1476-1477, 269

U.S. App. D.C. 145 (D.C. Cir. 1988).

32a

Appendix A

In the view of the Office of Legal Counsel, the

incumbent President “should respect a former President’s

claim of executive privilege without judging the validity

of the claim[,]” leaving the “judgment regarding such

a claim * * * to the judiciary in litigation between the

former President and parties seeking disclosure.” 1986

OLC Memorandum at 26. The OLC memorandum

acknowledged, though, that “if the incumbent President

believes that the discharge of his [or her] constitutional

duties * * * demands the disclosure of documents

claimed by the former President to be privileged, it

may be necessary for [the President] to oppose a former

President’s claim” even if “it is generally not appropriate

for an incumbent President to review and adjudicate the

merits of a predecessor’s claim of executive privilege[.]”

Id.; see also Burke, 843 F.2d at 1478-1479. In that event,

the Archivist would be obliged to follow the direction of

the incumbent President. 1986 OLC Memorandum at 24,

26; see Burke, 843 F.2d at 1478-1479.

In Public Citizen v. Burke, this court held that the

Office of Legal Counsel’s interpretation was neither

constitutionally required nor compatible w ith the

Preservation Act. 843 F.2d at 1479-1480. We ruled that

“the incumbent President is not constitutionally obliged

to honor former President Nixon’s invocation of executive

privilege with respect to the Nixon papers[.]” Id. at 1479.

Rather, it was the incumbent President’s duty under

the Preservation Act to “consider the host of difficult

questions that arise in this area,” even if that meant

being put in the “awkward position” of taking “a position

on claims of executive privilege put forward by former

President Nixon.” Burke, 843 F.2d at 1479.

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Meanwhile, the Presidential Records Act had tasked

the Archivist with promulgating regulations for the

provision of notice to a former President when materials

for which access had been restricted are sought by a court,

the President, or Congress under 44 U.S.C. § 2205(2),

and “when the disclosure of particular documents may

adversely affect any rights and privileges which the

former President may have[.]” 44 U.S.C. § 2206(2)-(3).

The Archivist promulgated those regulations in

1988. See 36 C.F.R. Pt. 1270 (1989). The regulations

required the Archivist to notify a former President or

the former President’s designated representative “before

any Presidential records of his [or her] Administration

[were] disclosed” either to the public or under Section

2205, including releases to Congress and its committees.

36 C.F.R. § 1270.46(a) (1989). If then “a former President

raise[d] rights or privileges which he [or she] believe[d]

should preclude the disclosure of a Presidential record,”

but the Archivist decided that the record still should be

disclosed, “in whole or in part,” the Archivist was required

to give notice to the former President or the President’s

representative. Id. § 1270.46(c).

Shortly after those regulations were promulgated,

President Ronald Reagan issued an Executive Order

that expanded on the process for responding to a

former President’s invocation of privilege. See Exec.

Order No. 12,667, 54 Fed. Reg. 3403 (Jan. 18, 1989);

see also 44 U.S.C. § 2204 note. Under that Executive

Order, when the incumbent President invoked executive

privilege, the Archivist was prohibited from disclosing

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the records “unless directed to do so by an incumbent

President or by a final court order.” Exec. Order No.

12,667 § 3(d). If a former President invoked executive

privilege, but the incumbent did not, the Archivist was

charged with determining “whether to honor the former

President’s claim of privilege[.]” Id. § 4(a). In making that

determination, though, the Archivist was bound to “abide

by any instructions given him [or her] by the incumbent

President or [the President’s] designee unless otherwise

directed by a final court order.” Id. § 4(b).

President Reagan’s Executive Order governed the

handling of privilege claims by former Presidents for more

than a decade. See 44 U.S.C. § 2204 note.

In 2001, President George W. Bush issued an

Executive Order that took a different tack. Exec. Order

No. 13,233, 66 Fed. Reg. 56,025 (Nov. 1, 2001); see 44

U.S.C. § 2204 note.

For disclosures to Congress or one of its committees

under 44 U.S.C. § 2205(2)(C), the new Executive Order

provided that the “Archivist shall not permit access to the

records unless and until * * * the former President and

the incumbent President agree to authorize access” or a

“final and nonappealable court order” requires it. Exec.

Order No. 13,233 § 6 (emphasis added). While that new

procedure reflected President Bush’s view of proper policy,

the Administration was explicit that such deference to a

former President was not constitutionally compelled and

would not affect a court’s disposition of a lawsuit by the

former President. See Hearings on Executive Order 13,233

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and the Presidential Records Act Before the Subcomm. of

the H. Comm. on Gov’t Reform, 107th Cong. 20, 108 (20012002) (“Executive Order 13,233 Hearings”) (statement

of M. Edward Whelan III, Acting Assistant Attorney

General, Office of Legal Counsel, Department of Justice);

id. at 21 (“Let me emphasize, moreover, that the Executive

order is wholly procedural in nature.” It does not “in any

respect purport to redefine the substantive scope of any

constitutional privilege.”).10 In addition, the incumbent

President need not “support that privilege claim” in the

“forum in which the privilege claim is challenged.” Exec.

Order No. 13,233 § 4.11

President Barack Obama returned to the procedures

established by President Reagan. Exec. Order No. 13,489,

74 Fed. Reg. 4669 (Jan. 21, 2009); see 44 U.S.C. § 2204 note.

In 2014, Congress largely codified the approach of the

Reagan Executive Order. The Presidential and Federal

Records Act Amendments of 2014, Pub. L. No. 113-187, 128

Stat. 2003, provided detailed procedures for protecting

and asserting claims of “constitutionally based privilege”

against disclosure “to the public” of presidential records.

Id. § 2; 44 U.S.C. § 2208 (procedures for public disclosure).

10. Mr. Trump has not argued that the Constitution requires

that the views of a former President unilaterally control. Nor could

he. See Nixon v. GSA, 433 U.S. at 449; Burke, 843 F.2d at 1479; Nixon

v. United States, 978 F.2d at 1272.

11. The Executive Order provided that the incumbent President

“will support” the former President’s privilege claim only when he

concurs in the assertion of privilege and access is sought by the public

under 44 U.S.C. § 2204(c)(1). Exec. Order No. 13,233 § 4.

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The 2014 Amendments provide that, if “the incumbent

President determines not to uphold the claim of privilege

asserted by the former President,” then “the Archivist

shall release the Presidential record subject to the claim”

at the end of a 90-day period unless otherwise directed by

a court order. 44 U.S.C. § 2208(c)(2)(C) (emphasis added).

The 2014 amendments did not expressly extend those

notification procedures to disclosures to Congress, the

incumbent President, or the judiciary under Section

2205. But under the Trump Administration, the National

Archives promulgated regulations “ensur[ing] that the

former and incumbent Presidents are given notice and an

opportunity to consider whether to assert a constitutionally

based privilege” when disclosure is sought under Section

2205. Presidential Records, 82 Fed. Reg. 26,588, 26,589

(June 8, 2017). Under those regulations, the Archivist

must “promptly notif[y] the President * * * during whose

term of office the record was created, and the incumbent

President” of a document request by, inter alia, “either

House of Congress, or * * * a congressional committee or

subcommittee” under 44 U.S.C. § 2205(2)(C). 36 C.F.R.

§ 1270.44(a)(3), (c). Once notified, “either President may

assert a claim of constitutionally based privilege against

disclosing the record or a reasonably segregable portion of

it within 30 calendar days after the date of the Archivist’s

notice.” Id. § 1270.44(d).

If the incumbent President maintains a privilege

claim, the Archivist may not disclose the document absent

court order. 36 C.F.R. § 1270.44(e)(2). On the other hand,

if the former President asserts privilege, the Archivist

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must consult with the incumbent President “to determine

whether the incumbent President will uphold the claim.” 36

C.F.R. § 1270.44(f)(1). If the incumbent President upholds

and maintains the claim, then the Archivist may not

disclose the presidential record without a court order. Id.

§ 1270.44(f)(2). If the incumbent President does not uphold

or withdraws the privilege claim or fails to decide within

30 days, the Archivist must “disclose[] the Presidential

record” after a 60-day time period, unless a court orders

otherwise. Id. § 1270.44(f)(3).

So for 24 years of the Presidential Records Act’s

operation and across f ive different presidencies,

Presidents, including former President Trump, have

agreed that the disclosure decision of an incumbent

President controls within the Executive Branch over the

contrary claim of a former President. And all Presidents

have agreed that the Constitution does not obligate an

incumbent President or court to uphold the views of a

former President. See Burke, 843 F.2d at 1479.

IV

With that background in mind, we turn to the merits

of former President Trump’s appeal. Our starting point

is the Supreme Court’s admonition that a preliminary

injunction is “an extraordinary remedy that may only be

awarded upon a clear showing that the plaintiff is entitled

to such relief.” Winter v. Natural Res. Def. Council, Inc.,

555 U.S. 7, 22, 129 S. Ct. 365, 172 L. Ed. 2d 249 (2008).

The movant must: (1) establish a likelihood of “succe[ss]

on the merits”; (2) show “irreparable harm in the absence

of preliminary relief”; (3) demonstrate that the equities

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favor issuing an injunction; and (4) persuade the court

that “an injunction is in the public interest.” Id. at 20. The

likelihood of success and irreparability of harm “are the

most critical” factors. Nken v. Holder, 556 U.S. 418, 434,

129 S. Ct. 1749, 173 L. Ed. 2d 550 (2009). The balance of

harms and the public interest factors merge when the

government is the opposing party. Id. at 435.

On this record, former President Trump has failed

to satisfy any of those criteria for preliminary injunctive

relief.

A

There is no question that the former President can

file suit to press his claim of executive privilege. The

Supreme Court in Nixon v. GSA specifically “reject[ed]

the argument that only an incumbent President may

assert such claims” and ruled that “a former President[]

may also be heard to assert them” in court. 433 U.S. at

439. The Court explained that executive privilege “is

necessary to provide the confidentiality required for the

President’s conduct of office” because, “[u]nless he can

give his advisers some assurance of confidentiality, a

President could not expect to receive the full and frank

submissions of facts and opinions upon which effective

discharge of his duties depends.” Id. at 448-449. “[T]he

privilege survives the individual President’s tenure[,]” the

Court said, because the “privilege is not for the benefit of

the President as an individual, but for the benefit of the

Republic.” Id. at 449 (internal quotation marks and citation

omitted). So the privilege that Mr. Trump asserts in his

capacity as a former President is of constitutional stature.

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T he P resident i a l Records Act ref lect s t hat

understanding by providing that a former President may

initiate an action “asserting that a determination made

by the Archivist violates the former President’s rights or

privileges.” 44 U.S.C. § 2204(e). And “[n]othing in [the] Act

shall be construed to * * * limit * * * any constitutionallybased privilege which may be available to a[] * * * former

President.” Id. at § 2204(c)(2).

B

While former President Trump can press an executive

privilege claim, the privilege is a qualified one, as he

agrees. See Nixon v. GSA, 433 U.S. at 446; United States

v. Nixon, 418 U.S. at 707; Appellant Opening Br. 35. Even

a claim of executive privilege by a sitting President can

be overcome by a sufficient showing of need. See United

States v. Nixon, 418 U.S. at 713; In re Sealed Case, 121

F.3d at 742. The right of a former President certainly

enjoys no greater weight than that of the incumbent.

In cases concerning a claim of executive privilege,

the bottom-line question has been whether a sufficient

showing of need for disclosure has been made so that

the claim of presidential privilege “must yield[.]” Nixon

v. GSA, 433 U.S. at 454; see United States v. Nixon, 418

U.S. at 706, 713.12

12. Mr. Trump’s counsel agrees that this standard governs. See

Oral Arg. Tr. 34:23-25; Appellant Opening Br. 35 (“[T]he executive

privilege * * * can only be invaded pursuant to a demonstrated and

specific showing of need[.]”).

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Appendix A

In this case, President Biden, as the head of the

Executive Branch, has specifically found that Congress

has demonstrated a compelling need for these very

documents and that disclosure is in the best interests of

the Nation. Congress, which has engaged in a course of

negotiation and accommodation with the President over

these documents, agrees. So the tests that courts have

historically used to police document disputes between

the Political Branches seem a poor fit when the Executive

and Congress together have already determined that

the “demonstrated and specific” need for disclosure

that former President Trump would require, Appellant

Opening Br. 35, has been met. A court would be hardpressed under these circumstances to tell the President

that he has miscalculated the interests of the United

States, and to start an interbranch conflict that the

President and Congress have averted.

But we need not conclusively resolve whether and

to what extent a court could second guess the sitting

President’s judgment that it is not in the interests of the

United States to invoke privilege. Under any of the tests

advocated by former President Trump, the profound

interests in disclosure advanced by President Biden and

the January 6th Committee far exceed his generalized

concerns for Executive Branch confidentiality.

1

On this record, a rare and formidable alignment of

factors supports the disclosure of the documents at issue.

President Biden has made the considered determination

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Appendix A

that an assertion of executive privilege is not in the best

interests of the United States given the January 6th

Committee’s compelling need to investigate and remediate

an unprecedented and violent attack on Congress itself.

Congress has established that the information sought

is vital to its legislative interests and the protection of

the Capitol and its grounds. And the Political Branches

are engaged in an ongoing process of negotiation and

accommodation over the document requests.

a

President Biden’s careful and cabined assessment

that the best interests of the Executive Branch and the

Nation warrant disclosing the documents, by itself, carries

immense weight in overcoming the former President’s

assertion of privilege.

To start, as the incumbent, President Biden is the

principal holder and keeper of executive privilege, and he

speaks authoritatively for the interests of the Executive

Branch. Under our Constitution, we have one President

at a time. Article II is explicit that “[t]he executive Power

shall be vested in a President of the United States of

America.” U.S. Const. Art. II, § 1, cl. 1 (emphasis added);

see Seila Law LLC v. Consumer Fin. Prot. Bureau, 140 S.

Ct. 2183, 2191, 207 L. Ed. 2d 494 (2020) (“[T]he ‘executive

Power’—all of it—is ‘vested in a President[.]’”) (emphasis

added) (quoting U.S. Const., Art. II, § 1, cl. 1). As between

a former and an incumbent President, “only the incumbent

is charged with performance of the executive duty under

the Constitution.” Nixon v. GSA, 433 U.S. at 448.

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To be sure, former President Trump has important

insight on the value of preserving the confidentiality

of records created during his administration. But it is

only President Biden who can make a fully informed and

circumspect assessment of all the competing needs and

interests of the Executive Branch. These might include

(to name just a few) the current and prospective threats

to democratic institutions and the electoral process,

intelligence on domestic extremists, the full panoply of

competing privilege claims and disputes between the

Executive Branch and Congress, the sensitive status of

interbranch relations at multiple levels, and the costs and

benefits of a privilege battle or disclosure at the time the

matter arises.

The Supreme Court underscored this point when it

held, in rejecting a claim of executive privilege by another

former President, that “it must be presumed that the

incumbent President is vitally concerned with and in the

best position to assess the present and future needs of

the Executive Branch, and to support invocation of the

privilege accordingly.” Nixon v. GSA, 433 U.S. at 449; see

also Dellums, 561 F.2d at 247 (“[I]t is the new President

who has the information and attendant duty of executing

the laws in light of current facts and circumstances, and

who has the primary * * * responsibility of deciding when

presidential privilege must be claimed[.]”).

So President Biden’s explicit and informed judgment

“detracts from the weight of” former President Trump’s

view that disclosure in these circumstances “impermissibly

intrudes into the executive function and the needs of the

Executive Branch.” Nixon v. GSA, 433 U.S. at 449.

43a

Appendix A

In addition, President Biden has identified weighty

reasons for declining to assert privilege here. He

grounded his decision in the “unique and extraordinary

ci rcumst ances” of the Janua r y 6th att ack—“an

unprecedented effort to obstruct the peaceful transfer of

power” that “threaten[ed] not only the safety of Congress

and others present at the Capitol, but also the principles of

democracy enshrined in our history and our Constitution.”

First Remus Ltr., J.A. 107-108. President Biden further

emphasized Congress’s “compelling need in service of its

legislative functions to understand the circumstances that

led to these horrific events.” First Remus Ltr., J.A. 107.

President Biden also tied his decision to “[t]he available

evidence to date[,]” which he concluded “establishes a

sufficient factual predicate for the Select Committee’s

investigation” of these presidential papers. First Remus

Ltr., J.A. 107. Finally, President Biden acknowledged

the “constitutional protections of executive privilege[,]”

but explained that “the conduct under investigation

extends far beyond typical deliberations concerning

the proper discharge of the President’s constitutional

responsibilities[,]” and the privilege “should not be used to

shield * * * information that reflects a clear and apparent

effort to subvert the Constitution.” First Remus Ltr., J.A.

108; see also Second Remus Ltr., J.A. 113; Third Remus

Ltr., J.A. 173-174.

The record also shows that, for the documents over

which the former President asserted privilege, President

Biden and his staff took at least a month to review each

tranche. See J.A. 125-128. During that time, former

President Trump’s views were obtained. J.A. 13. In

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Appendix A

addition, the sitting President and the Committee reached

compromises under which the Committee deferred its

request for some documents. J.A. 128, 176.

On this record, we cannot credit the former President’s

argument that President Biden’s calibrated judgment is

merely “the whim[] of [a] sitting President who may be

unable [to] see past his own political considerations.”

Appellant Opening Br. 17. Indeed, President Biden’s care

to limit his decision to the particular documents that

“shed light on events within the White House on and about

January 6[,]” First Remus Ltr., J.A. 107; see also Second

Remus Ltr., J.A. 113; Third Remus Ltr., J.A. 173-174,

bears no resemblance to the “broad and limitless waiver”

of executive privilege former President Trump decries,

Appellant Opening Br. 35.

That is not to say, of course, that an incumbent

President must provide a written explanation for a

former President’s claim of privilege to fail. In Nixon v.

GSA, the incumbent President had not provided such an

explanation, but instead had simply chosen to defend the

facial constitutionality of the Preservation Act in court.

See 433 U.S. at 441. And in Dellums, the incumbent was

silent as to privilege. 561 F.2d at 247.

Still, when the head of the Executive Branch lays out

the type of thoroughgoing analysis provided by President

Biden, the scales tilt even more firmly against the contrary

views of the former President. For Article III courts are

generally ill-equipped to superintend or second guess the

expert judgment of the sitting President about the current

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Appendix A

needs of the Executive Branch and the best interests of the

United States on matters of such gravity and so squarely

within the President’s Article II discretion.

President Biden’s explanation also makes clear

that his decision respects and preserves the strong

constitutional reasons for executive privilege at the heart

of the former President’s objection. Here, the letter

shows that President Biden’s judgment is of a piece with

decisions made by other Presidents to waive privilege in

times of pressing national need. For example, President

Nixon decided that executive privilege would “not be

invoked as to any testimony concerning * * * discussions

of possible criminal conduct” as part of the Senate Select

Committee’s investigation of Watergate. Statements

About the Watergate Investigations, 1973 Pub. Papers 547,

554 (May 22, 1973). During congressional investigations

into the Iran-Contra affair, President Reagan authorized

testimony and the production of documents, including

excerpts from his personal diaries. See Report of the

C ongressional C ommittees I nvestigating the I ranContra A ffair , H.R. Rep. No. 100-433, S. REP. No.

100-216, at xvi (1987). In the aftermath of the September

11th attacks, President Bush and Vice President Richard

Cheney sat for a more than three-hour interview with the

commission investigating the attacks.13 And President

Trump himself chose not to invoke privilege to prevent

former FBI Director James Comey from testifying

13. Philip Shenon & David E. Sanger, Bush & Cheney Tell 9/11

Panel of ‘01 Warnings, N.Y. Times (April 30, 2004), https://perma.

cc/QD2N-MAVX; see National Comm’n on Terrorist Attacks Upon

the United States , T he 9/11 Commission Report, at xv (2004).

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Appendix A

before Congress, despite (borne out) expectations that

the testimony would include Comey’s recollections of

confidential conversations with President Trump.14

In short, President Biden’s considered judgment that

the interests of the United States and the interests of

the Executive Branch favor disclosure in this instance

substantially “detracts from the weight of” former

President Trump’s contrary privilege contention. Nixon

v. GSA, 433 U.S. at 449.

b

Also countering former President Trump’s claim is

Congress’s uniquely weighty interest in investigating the

causes and circumstances of the January 6th attack so

that it can adopt measures to better protect the Capitol

Complex, prevent similar harm in the future, and ensure

the peaceful transfer of power. The Presidential Records

Act requires that the January 6th Committee show that

presidential records are “needed for the conduct of its

business[.]” 44 U.S.C. § 2205(2)(C). The Committee has

comfortably met that standard here.

The very essence of the Article I power is legislating,

and so there would seem to be few, if any, more imperative

interests squarely within Congress’s wheelhouse than

ensuring the safe and uninterrupted conduct of its

14. Peter Baker, Tr ump Will Not Block Comey From

Testifying, White House Says, N.Y. Times (June 5, 2017), https://

perma.cc./B93T-8STK.

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Appendix A

constitutionally assigned business. Here, the House of

Representatives is investigating the single most deadly

attack on the Capitol by domestic forces in the history

of the United States. Lives were lost; blood was shed;

portions of the Capitol building were badly damaged;

and the lives of members of the House and Senate, as

well as aides, staffers, and others who were working

in the building, were endangered. They were forced to

flee, preventing the legislators from completing their

constitutional duties until the next day.

The January 6th Committee has also demonstrated a

sound factual predicate for requesting these presidential

documents specifically. There is a direct linkage between

the former President and the events of the day. ThenPresident Trump called for his supporters to gather in

Washington, D.C. for a “wild” response to what he had

been alleging for months was a stolen election. Donald

Trump (@realDonaldTrump), T witter (Dec. 19, 2020,

1:42 AM). On January 6th, President Trump directed his

followers to go to the Capitol and “fight” for their Country

with the aim of preventing Congress’s certification of

the electoral vote. January 6th Rally Speech at 3:47:20

(“[Y]ou’ll never take back our country with weakness. * * *

We have come to demand that Congress do the right thing

and only count” certain electors.), 4:41:28.

The White House is also the hub for intelligence

about threats of violent action against the government,

and the Executive Branch is in charge of federal law

enforcement and mobilizing the National Guard to defend

the Capitol. See U.S. Const. Art. II, § 2, cl. 1; D.C. Code

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§ 49-409. So information from within the White House is

critical to understanding what intelligence failures led

the government to be underprepared for such a violent

attack, and what can be done to expedite the mobilization

of law enforcement forces in a crisis on Capitol Hill going

forward. H.R. Res. 503 § 4(a)(2)(A)-(B), (c). Given all

of that, the Committee has sound reasons for seeking

presidential documents in particular as part of its

investigation into the causes of the attack on the Capitol.

The Supreme Court’s decision in Nixon v. GSA makes

clear that Congress’s interests go far in outweighing the

former President’s privilege claim. In Nixon v. GSA, the

Court found a “substantial public interest[]” in “Congress’

need to understand how those political processes [in

the Watergate scandal] had in fact operated in order to

g[au]ge the necessity for remedial legislation” and “to

restore public confidence in our political processes[.]” 433

U.S. at 453. In that way, the Court explained, Congress’s

efforts to preserve and afford access to presidential

records “may be thought to aid the legislative process and

thus to be within the scope of Congress’ broad investigative

power[.]” Id. These “important” congressional interests in

coming to terms with the Watergate scandal supported

the Court’s conclusion that the former President’s claims

of executive privilege “must yield[.]” Id. at 454.

So too here, the January 6th Committee’s access

to the requested materials is vital to Congress’s own

evaluation of whether the process for transferring power

between administrations is “characterized by deficiencies

susceptible of legislative correction[,]” Nixon v. GSA, 433

U.S. at 499 (Powell, J., concurring).

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Appendix A

Keep in mind that the “presumptive privilege” for

presidential communications “must be considered in light

of our historic commitment to the rule of law.” United

States v. Nixon, 418 U.S. at 708. In United States v. Nixon,

the particular component of the rule of law that overcame

a sitting President’s assertion of executive privilege was

the “right to every [person]’s evidence” in a criminal

proceeding. Id. at 709 (quoting Branzburg v. Hayes, 408

U.S. 665, 688, 92 S. Ct. 2646, 33 L. Ed. 2d 626 (1972)).

Allowing executive privilege to prevail over that principle

would have “gravely impair[ed] the basic function of the

courts.” Id. at 712.

An equally essential aspect of the rule of law is the

peaceful transition of power, and the constitutional role

prescribed for Congress by the Twelfth Amendment in

verifying the electoral college vote. To allow the privilege

of a no-longer-sitting President to prevail over Congress’s

need to investigate a violent attack on its home and its

constitutional operations would “gravely impair the basic

function of the” legislature. United States v. Nixon, 418

U.S. at 712.

c

Weighing still more heavily against former President

Trump’s claim of privilege is the fact that the judgment

of the Political Branches is unified as to these particular

documents. President Biden agrees with Congress that

its need for the documents at issue is “compelling[,]” and

that it has a “sufficient factual predicate” for requesting

them. First Remus Ltr., J.A. 107; see also Third Remus

Ltr., J.A. 173. As a result, blocking disclosure would derail

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Appendix A

an ongoing process of accommodation and negotiation

between the President and Congress, and instigate an

interbranch dispute.

The Supreme Court has emphasized the importance

of courts deferring to information-sharing agreements

wrestled over and worked out between Congress and

the President. See Mazars, 140 S. Ct. at 2029, 2031.

Historically, “disputes over congressional demands for

presidential documents have not ended up in court[,]”

but rather “have been hashed out in the ‘hurly-burly,

the give-and-take of the political process between the

legislative and the executive,’” id. at 2029 (citation and

internal quotation marks omitted), generally allowing

the courts to avoid being drawn into the power struggle.

That “hurly-burly” is a flexible, dynamic process that

could involve interlocking and contingent negotiations over

multiple different requests for information, the President’s

legislative priorities, nominations and confirmations, and

the many other complementary and competing interests

and responsibilities of those two Branches.

In that “tradition of negotiation and compromise[,]”

the Executive and Legislative Branches have reached

an accommodation here. Mazars, 140 S. Ct. at 2031.

President Biden and Congress have come to an agreement

that the pressing needs of the January 6th Committee

and the interests of the United States warrant a limited

disclosure of the documents for which privilege has been

asserted. That arrangement reflects give-and-take, as the

Committee agreed to defer its request for fifty pages of

responsive records from the second and third tranches.

J.A. 170, 176.

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Appendix A

Former President Trump states that he too was

engaged in negotiations with the White House. But he

abruptly stopped them when the decision to release

documents from the first tranche was made. Compl. ¶¶ 1516, J.A. 13-15. And even though, in the past, committees

have sometimes “agreed to restrictions on the type of

access provided” to privileged documents, such as “readonly access or committee-confidential restrictions[,]”

Laster Decl., J.A. 124, former President Trump makes

no showing of having requested such restrictions from

the Committee or White House, and his counsel admitted

that he did not propose a more limited injunction along

those lines, see Oral Arg. Tr. 36-37.

In short, confronting former President Trump’s claim

of privilege is the hydraulic constitutional force of not only

a reasoned decision by the President that a limited release

is in the interests of the United States, and the uniquely

compelling need of Congress for this information, but also

this court’s “duty of care to ensure that we not needlessly

disturb ‘the compromises and working arrangements

that those [Political] branches themselves have reached.’”

Mazars, 140 S. Ct. at 2031 (formatting modified; quoting

NLRB v. Noel Canning, 573 U.S. 513, 524-526, 134 S. Ct.

2550, 189 L. Ed. 2d 538 (2014)).

2

That accumulation of forces favoring disclosure is at

least equal to, if not greater than, what has supported

the disclosure of the privileged materials of even a sitting

President. To establish a likelihood of success in prevailing,

52a

Appendix A

then, former President Trump bears the burden of at least

showing some weighty interest in continued confidentiality

that could be capable of tipping the scales back in his favor,

and of “mak[ing] particularized showings in justification

of his claims of privilege[.]” Senate Select Comm., 498

F.2d at 730. He has not done so. He has not identified any

specific countervailing need for confidentiality tied to

the documents at issue, beyond their being presidential

communications. Neither has he presented arguments

that grapple with the substance of President Biden’s and

Congress’s weighty judgments. Nor has he made even a

preliminary showing that the content of any particular

document lacks relevance to the Committee’s investigation.

He offers instead only a grab-bag of objections that simply

assert without elaboration his superior assessment of

Executive Branch interests, insists that Congress and

the Committee have no legitimate legislative interest

in an attack on the Capitol, and impugns the motives of

President Biden and the House. That falls far short of

meeting his burden and makes it impossible for this court

to find any likelihood of success.

a

Because Mr. Trump has sued solely in his “official

capacity” as the “45th President of the United States[,]”

Compl. ¶ 20, J.A. 16, he does not assert that disclosure of

the documents before us would harm any personal interests

in privacy or confidentiality. His sole objection is that

disclosure would “burden[] the presidency generally[,]” in

light of the need for “candid advice” and the potential for

a “chilling effect[.]” Appellant Opening Br. 29. In support

53a

Appendix A

of this claim, he presses the undisputed points that the

confidentiality of presidential communications protects

“the proper functioning of the government” and “ensure[s]

full and frank advice” for future Presidents. Appellant

Opening Br. 14, 36.

That is all he offers. And that is not close to enough.

When a former and incumbent President disagree about

the need to preserve the confidentiality of presidential

communications, the incumbent’s judgment warrants

deference because it is the incumbent who is “vitally

concerned with and in the best position to assess the

present and future needs of the Executive Branch[.]”

Nixon v. GSA, 433 U.S. at 449. Mr. Trump’s disagreement

with President Biden’s judgment, by itself, provides the

court no basis to override the sitting President’s judgment.

Nor is such a “generalized interest in confidentiality,”

United States v. Nixon, 418 U.S. at 711, sufficient for a

court to cast aside the January 6th Committee’s exercise

of core legislative functions, let alone enough for a court

to throw a wrench into the ongoing working relationship

and accommodations between the Political Branches.15

Former President Trump’s bare allegations of

partisan motives do not move the needle either. See

15. The former President makes a vag ue reference to

presidential discussions during the COVID pandemic in early 2020.

See Appellant Opening Br. 46. But he makes no argument that any

of the documents at issue here involved that topic. Nor is it at all

apparent that the Archivist would treat such communications as

responsive to the Committee’s request, or that President Biden would

decline to assert executive privilege over them.

54a

Appendix A

Appellant Opening Br. 3, 5-6, 15-17, 21-22, 35, 47;

Appellant Reply Br. 1-2, 5-8, 11, 19, 25-27, 32; Prelim.

Inj. Mem. at 1-4, 8, 17, 33-34. They are unsupported

by any plausible factual allegations and cannot stand

up to President Biden’s substantive explanation for not

asserting privilege and Congress’s distinct interest in

investigating and legislating in response to an attack on

itself. To that same point, the presumption of executive

regularity “has been recognized since the early days of

the Republic.” American Fed’n of Gov’t Employees v.

Reagan, 870 F.2d 723, 727, 276 U.S. App. D.C. 309 (D.C.

Cir. 1989). When, as here, “the President exercises an

authority confided to him by law, the presumption is that

it is exercised in pursuance of law.” Id. (quoting Martin v.

Mott, 25 U.S. (12 Wheat.) 19, 32-33, 6 L. Ed. 537 (1827))

(alteration in original).

Former President Trump predicts that, going

forward, incumbent Presidents will indiscriminately

decline to assert executive privilege over a former

President’s records whenever they are of the opposite

political party. See Appellant Opening Br. 47. But the

possibility of mutually assured destruction of the privilege

cuts against the risk of heedless disclosures.

More to the point, the greatest protection for executive

privilege is the natural self-interest of each new occupant

of the White House. Presidents of both parties have

long jealously guarded the powers and prerogatives of

the office. And every incumbent President will be the

next former President. That gives the incumbent every

incentive to afford robust protection to the confidentiality

55a

Appendix A

of presidential communications, even if only to assure

receipt of the best possible advice during his or her tenure.

See Nixon v. GSA, 433 U.S. at 448 (“[A]n incumbent may be

inhibited in disclosing confidences of a predecessor when

he believes that the effect may be to discourage candid

presentation of views by his contemporary advisers.”).

There are, in other words, “obvious political checks against

an incumbent’s abuse of the privilege.” Id.

Former President Trump next speculates about

certain communications for which the interests against

disclosure could extend beyond a generalized interest

in confidentiality, such as communications concerning

“complex and sensitive matters of foreign affairs.”

Appellant Opening Br. 46.

The problem is that he has not pointed to a single

record in the existing tranches that implicates a delicate

matter of foreign affairs or other “complex and sensitive”

topics. Appellant Opening Br. 46. He also puts the cart

before the horse. For even if the Archivist later were

to conclude that such a document was responsive to the

Committee’s request, it “must be presumed” that the

sitting President would factor a document’s sensitivity,

foreign policy or otherwise, into a future decision whether

to assert executive privilege. Nixon v. GSA, 433 U.S. at

449.16

16. Anyhow, given the Article III courts’ general “lack of

competence” in matters of national security policy, Holder v.

Humanitarian Law Project, 561 U.S. 1, 34, 130 S. Ct. 2705, 177 L.

Ed. 2d 355 (2010) (internal quotation marks and citations omitted),

former President Trump does not explain how a court could override

56a

Appendix A

b

Rather than articulate any superseding interest in

confidentiality, former President Trump argues that

the courts are obligated to comb through every single

document in camera to evaluate its privileged nature

before it is released. Appellant Opening Br. 38-39;

Appellant Reply Br. 14-15. Not so.

First of all, in briefing and at oral argument, counsel

for former President Trump was inconsistent in explaining

his request for in camera review. See Appellant Opening

Br. 38-39; Appellant Reply Br. 14-15; Oral Arg. Tr. 62:1863:7, 65:1-6. To the extent that the former President

proposes that the court determine whether each document

constitutes a privileged presidential communication, that

would be a meaningless exercise. See Oral Arg. Tr. 62:1923. President Biden does not dispute that the particular

documents at issue qualify for executive privilege. He

instead has made the deliberate decision not to invoke

that privilege. Therefore, the issue in this case is not

whether executive privilege could be asserted for each

document. It is whether a court can override President

the sitting President’s judgment that release of a document does not

imperil, or perhaps advances, foreign relations. See also id. at 34

(“[N]either the Members of this Court nor most federal judges begin

the day with briefings that may describe new and serious threats to

our Nation and its people.”) (quoting Boumediene v. Bush, 553 U.S.

723, 797, 128 S. Ct. 2229, 171 L. Ed. 2d 41 (2008)); cf. Marbury v.

Madison, 5 U.S. (1 Cranch) 137, 166, 2 L. Ed. 60 (1803) (Presidential

decisions that implicate “foreign affairs” are “entrusted to the

executive, [and] the decision of the executive is conclusive”).

57a

Appendix A

Biden’s reasoned decision to forgo privilege as to them and

Congress’s compelling need for them. So even if the court

were to examine each document in camera and determine

that every single one is privileged, we would simply end

up right back where we started.

If what former President Trump means instead

is that the court should hunt through the documents

in an effort to espy important reasons why President

Biden’s decision might be ill-advised, he gets the law

backwards. See Oral Arg. Tr. 65:1-6. Having asserted the

importance of confidentiality in these documents based

on his expert viewpoint as the President during whose

term they were created, former President Trump had

the burden of articulating some compelling explanation

for nondisclosure to the court. He cannot stand silent and

leave it to the court to come up with arguments for him.

Former President Trump insists that “[i]t is vital the

Court’s analysis be specific[.]” Appellant Reply Br. 16. Our

analysis can only be as specific as his claims are.

c

Having provided nothing to surmount President

Biden’s considered judgment, former President Trump

pivots to arguing that the January 6th “Committee

lacks a specific need for the requested information,”

Appellant Opening Br. 16, and so its disclosure violates

the separation of powers.

For mer P resident T r ump sets for th severa l

formulations of the test he believes this court should

58a

Appendix A

apply, all of which require that the January 6th Committee

do more than meet its burden under the Presidential

Records Act to show that the requested documents are

“needed for the conduct of its business” and “not otherwise

available[,]” 44 U.S.C. § 2205(2)(C). Most prominently, he

argues that disclosure is forbidden under the four-factor

test laid out in Mazars. Appellant Opening Br. 16, 18-20,

23-31; Appellant Reply Br. 21-24, 27-28. At other times, he

invokes Senate Select Committee’s requirement that the

documents be “demonstrably critical to the responsible

fulfillment of the Committee’s functions.” Appellant

Opening Br. 22-23 (quoting Senate Select Comm., 498 F.2d

at 731). Later, he claims that the Committee must make

the “demonstrated and specific showing of need” that was

required in United States v. Nixon. Appellant Opening

Br. 35 (citing United States v. Nixon, 418 U.S. at 713).

We have significant doubt that any of these tests

are appropriate in the context of a former President’s

challenge to the joint decision of an incumbent President

and the Legislative Branch that disclosure is warranted.

All of the cases on which Mr. Trump relies involved

requests for information from a sitting President, not a

former President, and called upon the courts to resolv

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