“I don’t see where the separation-of-power argument that you’re making exists,” Chutkan said as she grilled Trump attorney Justin Clark.
Chutkan’s commentary suggests she’s likely to rule against Trump’s effort to stop the National Archives from furnishing the records to Congress, a crucial milestone as the Jan. 6 committee seeks greater insight into Trump’s effort to overturn the 2020 election. Though Chutkan didn’t rule immediately, she vowed to issue a decision “expeditiously,” noting that the National Archives intends to provide the documents to lawmakers by Nov. 12.
But Chutkan also indicated that she had concerns about how broad the Jan. 6 committee’s request for Trump’s records were. Some documents they’re seeking, she noted, included polling data and records as far back as April 2020.
“There’s almost no limit to what you could be seeking,” Chutkan said.
Still, Chutkan reserved her toughest questions for Trump’s team, repeatedly suggesting that the history of executive privilege — from laws to court rulings — failed to support their argument that Trump could assert it in this case.
The Jan. 6 committee has asked the National Archives for extensive records of Trump’s decisions and contacts in the months leading up to the Jan. 6 insurrection, as well as about his effort to enlist the Justice Department to try to overturn the 2020 election results. Citing the unprecedented nature of the attack on the Capitol, President Joe Biden agreed that he would not assert privilege over any of the records in the committee’s early requests.
Trump filed suit last month, arguing that former presidents have the power to assert executive privilege over their White House records, even if the current president disagrees.
Chutkan, though, repeatedly poked holes in this argument. Executive privilege is meant to protect the office of the presidency itself, she noted, not the occupant — particularly after leaving office.
“The person best able to determine whether there’s an executive privilege is the current executive,” she said.
Chutkan also pressed House counsel Doug Letter to articulate the committee’s need for Trump’s records months before the election. Letter called the Jan. 6 committee’s probe “one of the most important congressional investigations in the history of our nation.”
Letter said the committee extended its request back to April because that’s when Trump began sowing distrust in the election system. He said seeing records about polling that might have circulated around the White House at that time could underscore Trump’s motive for stoking false voter fraud fears. He also wants to see whether those records connect with any efforts by Trump to prime others — allies in Congress, political activists and pro-Trump militia groups — to amplify his false claims.
Letter agreed that the committee’s request for records was “broad” but that the scope of the inquiry was “for Congress to decide” and not for a court to supervise, particularly in a case in which the sitting president agrees.
“If we’re wasting the taxpayers’ money, President Trump can argue about that,” he said. “That’s not an issue for this court.”
Letter described a litany of legislation that the committee might pursue depending on the results of its probe, noting that one facet of the investigation is whether Trump was “fomenting this attack on Congress.”
“What did the president know and when did he know it?” Chutkan replied.
“That is absolutely essential to this inquiry,” Letter said.