According to the Justice Department, the fourth tranche, identified by NARA officials in December, was not covered by the lower-court orders. However, Trump’s lawyers did ask the Supreme Court on Dec. 23 to halt all transfers of disputed records to the House panel. The high court has yet to act on that request.
The acting head of the department’s Civil Division, Brian Boynton, said that in light of the lack of any court order prohibiting the disclosure, NARA planned to provide the four contested pages to the committee unless a court ordered otherwise by Wednesday.
“Absent an intervening court order, the Archivist intends to release records from the fourth tranche to the Committee at 6:00 pm tomorrow,” Boynton said in a letter filed with the D.C. Circuit on Tuesday evening.
Boynton said the Justice Department had alerted Trump’s lawyers to the possibility that the new records would be released, but the Trump attorneys said on Tuesday that they believed the planned handover of the so-called fourth tranche would violate a stay that the D.C. Circuit imposed in November.
However, the Justice Department attorney said the stay applied only to the three sets of records originally at issue in the litigation.
Boynton noted that President Joe Biden agreed to delay the release of the fourth tranche of records until Jan. 19 “to ensure the former President had an opportunity to seek judicial relief.”
“Despite that opportunity, the former President did not move for a preliminary injunction in district court with respect to records from the fourth tranche or even amend his complaint to seek relief with respect to any such records,” Boynton said. “Nor did he seek clarification or further relief from this Court. His only request for relief with respect to records from the fourth tranche was in the Supreme Court.”
An attorney for Trump did not immediately respond to messages seeking comment on the latest twist in the legal fight.
The Supreme Court has not indicated whether it will take up Trump’s lawsuit, allow the lower court rulings to stand or grant emergency relief pending its decision. House lawyers urged the justices to consider the case at their Jan. 14 conference, but Friday’s meeting came and went without any public acknowledgment of their plans.
Trump has moved to keep hundreds of pages of his White House records from congressional investigators, claiming that he has the authority to assert executive privilege over them. The pages include hundreds culled from the files of his former chief of staff Mark Meadows and former press secretary Kayleigh McEnany, among other top officials. They include briefing notes, speech drafts and call and visitor logs, among other records.
The substance of the four pages in the fourth tranche was not immediately clear. Trump had sought to block the panel from receiving six pages — but two of them, Boynton indicated, were substantially similar to pages in an earlier tranche that was covered by the court order, so they will continue to be withheld.