On Monday, October 18, 2021, former President Donald Trump filed a lawsuit to block the release of records detailing his communications leading up to and during the January 6 attack on the Capitol. Directed to the House Select Committee investigating the insurrection, the National Archives and Records Administration (NARA), and the two entities’ respective leaders, the lawsuit is former President Trump’s latest attempt to delay accountability for the day’s horrific events. More broadly, the lawsuit presents potentially dangerous interpretations of the right to information, executive privilege, and presidential records—all of which are essential for government transparency and accountability.
What is the lawsuit about?
Former President Trump and his legal team filed the complaint in the U.S. District Court for the District of Columbia in response to a records request submitted by the House Select Committee to Investigate the January 6th Attack on the United States Capitol. The records in question include emails, paper documents, audio records, and other materials created or received by the president or members of the president’s staff related to the insurrection and the election results. Former President Trump, who has repeatedly defended the insurrectionists and his actions on January 6, claims in his lawsuit that the House Select Committee has no legitimate legislative purpose, the Committee did not provide sufficient time to review the requested records, and the records sought should be protected by executive privilege.
The Right to Access Information
Under the Presidential Records Act (PRA), the law governing presidential records preservation, the courts and congressional bodies such as the House Select Committee can access presidential records after providing a 30-day notice to the former and current presidents. This special access is not available to other records requesters, such as businesses, journalists, or members of the public, who must wait five years (or up to 12 years, if the former president invokes any of six restrictions to public access) after the end of an administration. Backlogs, processing time, or general obstruction can further delay records production.
Congress has a long history of establishing select committees in both the House and the Senate to investigate issues of national concern, and the bipartisan House Select Committee investigating the insurrection is only the latest to use its authority to conduct an investigation and report out its findings. Former President Trump’s claim that the House Select Committee’s records request is illegitimate overlooks this history, and discounts the invaluable insight the records would likely provide into who in the Trump administration knew what and when. This information would be vital to informing the Select Committee’s legislative recommendations to protect the country from future attacks.
The Limits of Executive Privilege
The lawsuit also claims that even if the House Select Committee’s request were legitimate, the Select Committee should not be able to obtain communications between then-President Trump and his aides because the records are protected by executive privilege. Executive privilege is a longstanding power claimed by presidents to withhold certain forms of communication from the legislative and judicial branches. This privilege is important to protect the office of the president, but, as courts have ruled previously, the decision of whether to use executive privilege should always weigh the need to protect confidentiality with the need to administer justice. Using executive privilege to prevent embarrassment or otherwise protect the wrongdoing of former presidents would create a dangerous opportunity for presidential misconduct to avoid any accountability.
Thus far, President Biden has decided not to assert executive privilege over the records requested by the Select Committee, with his legal team stating that “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.” This is a promising sign for ensuring that the investigation will be able to consider the Trump administration’s presidential records, but lingering ambiguity about whether executive privilege applies to both former and current presidents leaves this privilege ripe for abuse. It will likely come to the Supreme Court to determine if this lawsuit will establish a long-lasting threat to presidential accountability.
Accessing Presidential Records
At the heart of the Select Committee’s inquiry and the debate around executive privilege are presidential records and the PRA. The PRA, enacted in 1978, has long struggled to keep up with the evolution of presidential records as administrations have shifted from creating manageable, primarily paper records to tens of thousands of cubic feet of paper records and hundreds of terabytes of electronic records. Then came the Trump administration, which exposed new and even more concerning weaknesses in the PRA and its enforcement.
At the start of his administration, then-President Trump repeatedly blocked the creation of presidential records, confiscating notes and wholly preventing notetakers from attending meetings with foreign leaders such as Russia’s President Vladimir Putin. When Trump flouted the PRA by ripping up documents from routine meetings, aides were forced to retrieve the paper scraps from the trash and painstakingly attempt to tape them back together. The former president’s disregard for the PRA persisted through to the very end of his administration and continues with this week’s lawsuit.
The current administration appears to have largely returned to following the records preservation rules and norms obeyed by presidents past, but former President Trump’s transgressions exposed a number of weaknesses in the PRA that our democracy cannot afford to leave unaddressed for future presidents to abuse. Congress has the authority to modernize the PRA in select but impactful ways, such as establishing a bright-line rule that all presidential records merit preservation; requiring the executive branch to issue regular reports on records preservation efforts; and increasing funding for NARA to support records preservation and searches.
Transparency and Accountability Hang in the Balance
The Capitol insurrection was an unprecedented attack on our democracy, and the House Select Committee’s investigation is currently the country’s best chance to identify not only its causes but also the necessary protections to keep similar events from happening again. Former President Trump’s lawsuit has already delayed those efforts, but the possibility of lasting damage to government accountability will depend on how the courts and Congress respond to the lawsuit’s claims.