The U.S. Court of Appeals for the District of Columbia Circuit has unsealed about 600 pages of material from the pre-indictment phase of the criminal investigations into President Trump. (Related New York Times article.) This tranche is the latest phase of my effort to obtain for the public and historical record court records that were sealed at the time because they involved grand jury matters. Previous disclosures came from the district court level. (Kyle Cheney of Politico also pursued release of executive privilege fights at the district court level. I’ve just sort of obstinately kept going to try to get other stuff out, including material about attorney-client privilege fights, applications for nondisclosure orders to phone companies to accompany grand jury subpoenas for lawmaker toll records, and now this appeals court level.)
Context: Starting in 2022 and extending into 2023, the Justice Department (eventually under Special Counsel Jack Smith) subpoenaed former White House officials for the election subversion investigation, and two lawyers for Trump in the classified documents investigation. Trump tried to block each from testifying by asserting executive privilege and/or attorney-client privilege. The chief judge of the district court, who oversees grand jury matters (mostly Judge Beryl Howell, but Judge Jeb Boasberg took over as chief near the end) consistently ruled that the need to get evidence for the criminal investigations overcame the privilege and issued orders compelling the witness to testify. Trump filed emergency requests for stays of those orders, and the D.C. Circuit consistently rejected them. The grind of this litigation helped delay the investigations.
The newly disclosed material mostly consists of filings by Trump’s legal team and by prosecutors, accompanied by rejections of the stay requests. A highlight is a 10-page opinion (styled as a per curium order) by Judges Patricia Millett and Robert Wilkins, and a 3-page dissent by Judge Greg Katsas, regarding the subpoena to former Vice President Mike Pence. As Katsas noted, there was no precedent for how to think about a president’s and vice president’s communications with each other, so this was novel. Trump tried invoking national security, but all three judges rejected that. Trump also claimed that such communications were absolutely immune from compelled disclosure. Millett and Wilkins said such communications are only subject to qualified immunity from compelled disclosure; Katsas said he was not sure and would have let the litigation play out more.
I asked Claude to make this chart and have uploaded the PDFs under the case number:
| CASE | DISTRICT COURT RULING | DC CIRCUIT ORDER AND PANELS | LIKELY WITNESS(ES) |
| 22-3073 | Compel order Sept. 28, 2022; stay denied Oct. 6 | Oct. 12, 2022 stay denied — Henderson, Wilkins, Pan (Henderson dissenting) | Marc Short and Greg Jacob |
| 23-3002 | Compel order Nov. 19, 2022 (redacted opinion Nov. 28); stay denied as moot | Apr. 25, 2023 dismissed as moot — Millett, Wilkins, Katsas | Pat Cipollone and Patrick Philbin |
| 23-3003 | Compel order Dec. 9, 2022 (redacted opinion Dec. 13); stay denied as moot | Apr. 25, 2023 dismissed as moot — Millett, Wilkins, Katsas | Probably Eric Herschmann |
| 23-3035 and 23-3036 | Crime-fraud order Mar. 17, 2023 (Howell); stay denied Mar. 20 (Boasberg) | Mar. 21, 2023 administrative stay and Mar. 22 stay denied — Pillard, Childs, Pan | Evan Corcoran and Jennifer Little |
| 23-3043 | Compel order Mar. 15, 2023 | Apr. 4, 2023 stay denied — Millett, Wilkins, Katsas (Millett and Katsas each concurring separately) | Omnibus for most remaining executive branch witnesses — reportedly Mark Meadows, Stephen Miller, Dan Scavino, John Ratcliffe, Robert O’Brien, Ken Cuccinelli, John McEntee, Nick Luna |
| 23-3049 | Compel order Mar. 25, 2023; stay denied Apr. 10, stayed to noon Apr. 12 | Apr. 26, 2023 stay denied, 10-page per curiam — Millett, Wilkins, Katsas (Katsas dissenting) | Mike Pence |