Notice & Comment

D.C. Circuit Review – Reviewed: Judicial Review and the Presidential Records Act

There were no new opinions last week, likely due to the Thanksgiving holiday.  But that didn’t stop the court from issuing an interesting order on Tuesday, that likely led to some holiday-weekend work for a few attorneys. 

The case is Trump v. Thompson and it deals with the House investigation into the January 6th riots.  The House committee charged with investigating the riots requested certain records maintained by the National Archives and Records Administration (NARA) pursuant to the Presidential Records Act.  Those records included materials related to President Trump’s January 6 speech, the rally and march, the violence at the Capitol, and the response within the White House.  Under the Presidential Records Act, when a President leaves office, NARA gets custody of the records of the administration.  The outgoing President can restrict access to especially sensitive materials for up to 12 years, subject to various exceptions—including an exception for making records available to Congress in certain circumstances.  Even when Congress requests such records, however, a former President may assert a claim of privilege, which is what former President Trump has done here.  NARA then consults with the incumbent President to determine whether the incumbent President will uphold the claim of executive privilege.  If he chooses not to do so, NARA regulations state that it will disclose the records after 60 days, unless a federal court order directs otherwise.  President Biden opted not to exercise executive privilege here, leading Trump to sue in the U.S. District Court for the District of Columbia, seeking an injunction prohibiting the House committee and NARA from enforcing or complying with the requests.  Judge Tanya Chutkan issued an opinion on November 9 denying that request.  The opinion reasons that the incumbent President, rather than the former President, is best situated to evaluate the long-term interests of the executive branch, and then deferred to President Biden’s decision here.  Judge Chutkan also rejected Trump’s constitutional challenge to the PRA. 

A panel of the D.C. Circuit issued an administrative injunction enjoining release of the records pending appeal and set an expedited briefing schedule, culminating with an argument to be held on November 30.  Then, last Tuesday, the panel issued another order telling the parties that they should be prepared to address a jurisdictional question:

“Does the provision in the Presidential Records Act providing that the Archivist’s ‘determination whether access to a Presidential record . . . shall be restricted . . . shall not be subject to judicial review, except as provided in subsection (e) of this section,’ 44 U.S.C. § 2204(b)(3) (citing 44 U.S.C. § 2204(e)), implicate this court’s or the district court’s jurisdiction in this case?  See, e.g., National Coalition to Save Our Mall v. Norton, 269 F.3d 1092, 1094-95 (D.C. Cir. 2001). If so, what effect, if any, do §§ 2204(b)(3) and 2204(e) have on the subject matter jurisdiction of the district court to adjudicate any of the requests listed in the Complaint’s Claim for Relief?”

This kind of order is not unheard of, particularly when the panel is concerned about a jurisdictional issue that the parties did not raise in briefing.  (Although the order issued the day before the reply brief was due, Trump’s attorneys did not address it.)  But the substance of the order here is somewhat puzzling.  44 U.S.C. § 2204(e) states that “[t]he United States District Court for the District of Columbia shall have jurisdiction over any action initiated by the former President asserting that a determination made by the Archivist violates the former President’s rights or privileges.”  That appears to be precisely what happened here.  Perhaps one could argue that the determination to release the records was really made by President Biden, and not the Archivist.  But it was the Archivist that issued the regulations requiring release of the records upon the incumbent President’s determination.  Or perhaps the panel is considering whether § 2204(e) means that jurisdiction extends only to the district court and cuts off the normal appellate process.  That strikes me as a bit of a stretch—presumably if that was Congress’s aim, it would have been more explicit about it.

The order’s citation to National Coalition to Save Our Mall v. Norton doesn’t shed much more light on the issue.  In that case, organizations sued seeking an injunction against the construction of a proposed World War II Memorial on the National Mall.  While the case was pending, Congress enacted a statute barring any judicial review of agency decisions underlying the construction.  The district court accordingly dismissed the action, and the D.C. Circuit likewise concluded that the statute withdrew its jurisdiction.  The case thus has little to say about the situation here, where the statute clearly contemplates some level of judicial review. 

I’m sure we’ll get much more insight into the panel’s thinking on the issue during the argument on Tuesday (which you can live-stream here).  Until then, I hope the attorneys got to squeeze in some turkey and pie while contemplating jurisdiction and the separation of powers.   

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