December 6, 2021

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DENIED: Judge Refuses Trump Request For Injunction In Jan. 6 Records Dispute

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(Photo by Win McNamee/Getty Images)

All eyes are on the DC Circuit this morning after US District Judge Tanya Chutkan denied former President Trump’s motion for an injunction to block release of his presidential records to the January 6 Select Committee.

It was the third late-night smackdown in a row for Trump in the dispute involving presidential records held by the National Archives over which he claims executive privilege. On Tuesday, his petition for an injunction was rejected for being untimely since the court had not ruled and thus there was nothing to enjoin. Wednesday evening, Judge Chutkan made clear that she would not be prioritizing the executive privilege claim of some crank on a golf cart over the IRL sitting POTUS, noting tartly, “Presidents are not kings, and Plaintiff is not President.”

Then last night, after Trump managed to file a timely motion and the Select Committee and National Archives weighed in, Judge Chutkan ruled once again that the former president doesn’t get to overrule the sitting president — no, not even if he files an appeal and then demands a “stay” to preserve the status quo.

“Plaintiff cannot do an end run around the preliminary injunction factors simply because he seeks appellate review,” she noted, adding later that “This court will not effectively ignore its own reasoning in denying injunctive relief in the first place to grant injunctive relief now.”

The court also pointed out that the requested stay under Rule 62 would not, in fact, help the plaintiff at all.

A stay would not give Plaintiff the relief he seeks—preventing the transmission of documents from NARA to the House Select Committee—as the status quo in this case is that NARA will disclose documents on November 12, “absent any intervening court order.” Pl. Mot., Ex. 7. Accordingly, the court will analyze Plaintiff’s motion as one seeking injunctive relief, rather than a stay.

What he wants is an injunction, and he’s not getting one, at least not from this court.

Although mad props for having the chutzpah to argue that Joe Biden is unqualified to make an executive privilege determination because he’s “a party rather than a neutral” in this case. It takes some stones to whine that presidential communications are being “publicly released to meet a political objective” on behalf of a guy who declassified large swathes of FBI investigative files via tweet a month before the election. Well, he tried to, anyway, but his presidenting skills were on par with his legal arguments, so it didn’t happen.

Politico’s Josh Gerstein reports that Trump will likely draw the optimal panel after noticing his intent to file an interlocutory appeal to the DC Circuit. If indeed he does wind up with Judges David Tatel, Neomi Rao, and Justin Walker, the latter two of whom he appointed to the appellate court, then perhaps the former president will get his injunction after all. But with the first tranche of documents scheduled to be released Friday, the clock is ticking.

Theory of the unitary executive, or dance with the one that brung ya? We’ll find out soon.

Trump v. Thompson [Docket via Court Listener]


Elizabeth Dye lives in Baltimore where she writes about law and politics.

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