Washington — The National Archives said it plans to release a group of disputed Trump White House documents to the House committee investigating the January 6 attack on the Capitol on Wednesday evening, barring intervention from the federal courts.
This group of documents is not specifically identified in thebetween former President Donald Trump and the committee, which pertains to three additional collections of his White House records, so the Archives said the documents can be turned over.
"Absent an intervening court order, the Archivist intends to release records from the fourth tranche to the Committee at 6:00 pm tomorrow," the National Archives wrote the D.C. Circuit Court of Appeals late Tuesday night.
According to the letter and other filings, the handout includes just four pages of documents from the Office of Records Management, records the former president has attempted to shield from the committee.
"As this Court observed, the former President asserted executive privilege over six pages of documents from the fourth tranche and President Biden declined to uphold that assertion," the filing to the court read. "Because two of the six pages are similar to pages that are contained in the first three tranches and subject to this Court's administrative injunction, the Archivist intends to produce only the remaining four pages."
The Appeals Court panel to which the letter was addressed already ruled that three initial tranches of documents could be handed over to the House committee, finding that a former president does not have the right to exert executive privilege if a current president disagrees.
However, to give Trump's team time to bring the question before the Supreme Court, the judges paused the enforcement of their ruling by issuing an administrative injunction.
"This Court specifically stated in its December 9, 2021 decision," Tuesday night's filing explains, "that its administrative injunction encompassed only records from the first three tranches, which were the only tranches at issue in the appeal."
The Archives, represented by Justice Department lawyers, noted in its filing that President Biden refused to exert executive privilege of the documents, but ordered the document transfer to be delayed 30 days longer than stipulated to give his predecessor time to ask a court to stop it.
"Despite that opportunity, the former President did not move for a preliminary injunction in district court with respect to records from the fourth tranche or even amend his complaint to seek relief with respect to any such records. Nor did he seek clarification or further relief from this Court," the Archives explained.
Trump did, however, attempt to preempt any future disclosure in his initial appeal to the Supreme Court by asking the justices to issue a blanket pause on any document transfers.
"There will be forthcoming tranches over which President Trump intends to assert privilege," his lawyers said. "For the sake of judicial efficiency and to preserve the status quo, President Trump asks that Respondents be enjoined from producing any potentially privileged or restricted records until the petition for a writ of certiorari matter is resolved by the Court."
"To date, the former President has not sought such an order from the district court or this Court," Tuesday's letter from the Archives stated.
In response to Tuesday's letter, Trump's legal team said the Archives' notice "is nothing more than an attempt to proactively build a defense to prospective contemptuous conduct."
"The government has the burden backwards: President Trump is under no obligation to seek another injunction to prevent an act squarely prohibited by an injunction already granted him," they said. "Instead, it is the government's obligation to seek relief if it wishes to release said documents. Should the Government ignore its obligations under that order, then President Trump will promptly bring an appropriate motion before the Court."
The Department of Justice and the National Archives maintained that Wednesday's release "will not violate any order of any court," as the Supreme Court has yet to rule.
Since the former president filed his lawsuit, the National Archives has revealed that it identified more than 1,500 pages pertinent to the committee's request in the first three tranches. These include daily presidential diaries, the files of then-White House chief of staff Mark Meadows, multiple binders belonging to then-White House press secretary Kayleigh McEnany and White House talking points alleging voter fraud in the 2020 presidential election. Trump has exerted privilege over more than 700 of these pages.
The letter came after Trump's attorneys wrote to the Supreme Court, arguing the House Committee "will not be harmed by delay" in the document transfer from the first three tranches.
"Despite their insistence that the investigation is urgent, more than a year has passed since January 6, 2021. Years remain before the next transition of power. The Committee and the Court have time to make a swift but measured analysis of these important issues and make sure that in the rush to conduct its investigation, the Committee does not do irreparable structural damage in the process," the former president argued in the also attached docs.
The Supreme Court has yet to rule or issue any notice on the former president's request.
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