NOVEMBER 9, 2021
The unusual exchange, which happened in a span of two hours, comes as Chutkan is already considering an earlier request by Trump to prevent Congress from peering into his White House’s records about his attempt to overturn the 2020 election. Trump sued to block the National Archives from turning the records over last month, after President Joe Biden declined to assert executive privilege on his behalf. The Archives indicated it would turn the papers over to lawmakers by Friday, unless a court intervened.
Chutkan heard arguments in the suit last week and promised to rule quickly on Trump’s initial emergency request. But she seemed inclined to reject it, questioning the legal basis for a former president to claim executive privilege over records when the sitting president and Congress disagree.
The National Archives has indicated that Trump is seeking to block at least 750 pages out of an initial 1,500 unearthed in response to the Jan. 6 committee’s request for records about the former president’s effort to overturn the election. Many of those papers are culled from the files of senior Trump aides like Mark Meadows, Stephen Miller and Patrick Philbin. They also include call and visitor logs.
Trump’s attorney, Jesse Binnall, issued his second request Monday night, asking Chutkan to approve an “administrative stay” of her own ruling even before she issued it. That way, Binnall argued, Trump would have a chance to appeal her decision before the Archives began delivering hundreds of pages to congressional investigators.
Binnall also warned Chutkan that if she didn’t rule on Trump’s first request by Wednesday, he would go immediately to the appeals court and ask it to step in. He noted that Thursday is Veterans Day and that the National Archives plans to send Trump’s papers to Congress at 6 p.m. Friday.
“This case should be decided after thorough but expeditious consideration pursuant to America’s judicial review process, both before this Court and on appeal, not by a race against the clock,” Binnall wrote.
But the request baffled legal experts, who said judges have no power to preemptively block rulings they haven’t issued yet. They noted Chutkan is already moving on an urgent timeline to consider Trump’s initial request and that it was odd for the former president to threaten to go to the appeals court before seeing Chutkan’s decision.
Chutkan, in her brief decision overnight, said she would consider Binnall’s request for a stay after she issues her ruling, which she reiterated would arrive “expeditiously.” But she noted that federal rules only allow a stay “while an appeal is pending,” not before.