During a three-hour and 40-minute hearing on Tuesday, judges expressed skepticism over Trump’s claims, as they questioned the role the courts should play in litigation when a outgoing president declined to assert a claim of executive privilege that a former president seeks to assert.
“It all comes down to who decides. Who decides when it is in the best interest of the United States to release presidential records? Is it the current occupant of the White House or the first? DC Circuit Court of Appeals Judge Ketanji Brown Jackson said.
The Trump team was roughed up by the tough questions from the three judges, who signaled that they were not interested in doing a document-by-document review of cases that Trump believed should be held up. However, the judges also questioned attorneys for the House and for President Joe Biden – who agree to the documents being disclosed – about scenarios in which an assertion of privilege from a former president could trump one. waiver of this privilege by the holder.
“We’re not just flipping a coin or pulling straws or something like that. Which test are we supposed to use? Judge Robert Wilkins asked a lawyer representing the House.
The arguments are likely to be an uphill battle for the former president. The Biden administration and the House are aligned against him in wanting transparency on communications in the West Wing as Trump sought to overturn the 2020 election result and his supporters raided Capitol Hill. Trump lost his first turn in court in the case, faster and more resoundingly than his losses when he tried to claim broad protections from investigations while he was president.
Yet, raising major and unresolved questions about the power of former presidents to control information since their tenure, the case appears to be on its way to the Supreme Court.
Trump has argued that he should be able to assert executive privilege over recordings such as call logs and handwritten notes from his top advisers. The Biden administration has refused to keep White House documents related to January 6 confidential.
“All three branches of government have recognized that there is a presidential election – a right of former presidents to be able to challenge the nomination when the presidential files are released. Congress did it by passing the statute, ”Jesse Binnall, a lawyer for Trump, argued.
Judges toasted Binnall on some of the procedural issues that arose in the case, before arguments turned to the merits of Trump’s arguments, which were presented by Trump’s lawyer Justin on Tuesday. Clark.
Judge Patricia Millett, another member of the panel, questioned Clark’s emphasis on Trump’s presidential documents that have already been released to Congress without Trump’s challenge.
Millett said she does not see the case over the content of the documents Trump seeks to block, but what to do if there is a dispute between the current and the former president over the release of the documents.
Review of a 1977 Supreme Court Opinion
In a disturbing sign for Trump, at least one panel judge said she had a different interpretation than the Trump team of an important Supreme Court opinion on which Trump depends in the case.
Jackson suggested that she had not seen the 1977 decision in Nixon v. General Services Administration give Trump legal leeway to challenge the current president’s decision to waive the privilege in court.
“When you have a conflict between the holder and the former, [the] the incumbent decides, ”Jackson said.
Millett also focused on this case, asking Clark what weight the courts should give to a current president’s refusal to assert document privilege.
“We have one president at a time under our Constitution,” that’s what this case says, Millett told Clark.
Judge Robert Wilkins, the third member of the Appeal Board, referred to other court precedents from the Nixon era and told Trump’s legal team “it seems your argument is inconsistent with our precedent.”
He focused on Clark’s assertion that, in these disagreements between current and former presidents, courts may have to look at contested records document by document.
“That’s not the way we say we do it, at least the way I read these cases,” Wilkins said.
Millett then dug in, with a series of even tougher questions for Clark.
“Stop. Please stop! She said interrupting him.
After the current president invokes executive privilege, “You say now the former president could say let’s look at the documents” in court to make confidentiality decisions, Millett said. “It changes the analysis, not the spirit of a court to say ‘This is executive privilege, this is not executive privilege,” she said.
Later, in his questions to Doug Letter, the attorney representing the House committee on January 6, Millett asked what the limits were on an incumbent’s ability to overrule an assertion of privilege by a former president. She asked Letter about a scenario in which an incumbent president sought the publication of documents from a former president simply to “avenge” his predecessor, and she offered another hypothesis in which a former president raised concerns about the publication of presidential documents endangering the lives of foreign agents. . Wilkins presented a scenario in which the courts weighed an assertion of privilege by four former presidents against waiver of that privilege by the incumbent.
The letter acknowledged that there might be a “bizarre” scenario where the current president is not the ultimate arbiter of executive privilege, but he pointed out that these assumptions were far removed from the case in court.
Brian Boynton, the Department of Justice attorney who has argued on behalf of the Biden administration, said for now the DC Circuit may avoid saying whether the courts could ever side with the former president for an incumbent in such disputes.
“It really should be a simple case… President Biden’s decision was eminently reasonable,” Boynton said.
Put back on hold
The National Archives was due to start turning over the files this month to Congress, but Trump’s trial put that on hold, potentially slowing down parts of the House committee’s investigation. Trump also warned the appeals court against giving Congress too much power.
The House said it needed Trump’s more than 700 pages of disputed White House documents from close advisers including then chief of staff Mark Meadows and press secretary Kayleigh McEnany , so she can learn enough about Trump’s efforts to get Congress to pass laws that could protect future elections. The Biden administration has endorsed the House by learning as much as possible about Trump and the attempted coup.
DC District Court Judge Tanya Chutkan has previously rejected all of Trump’s arguments in the case. “Presidents are not kings and the claimant is not president,” she wrote in her opinion earlier this month.
Presidential privilege “exists for the benefit of the Republic, not just any individual,” Chutkan also wrote.
Now the DC Circuit Court of Appeal could rule quickly. The panel of appeal judges – Millett, Wilkins and Jackson – are all nominated by Democrats and moved quickly to schedule the case for argument, bringing it before them just three weeks after Chutkan’s decision. Jackson is already known to oppose Trump’s sweeping executive privilege claims, having written years ago that “presidents are not kings” when Trump tried to block a congressional subpoena of his former lawyer from the White House, Don McGahn.
So far, the panel has shown a hint of doubt. Last week, they told Trump, the House and the Biden administration to be prepared to answer questions about whether the court could even decide a case like this – in addition to arguments the parties are already ready to argue.
Wilkins has also been a strong voice in recent politically charged affairs. He wrote strong dissent against the rejection of the guilty plea of former Trump national security adviser Michael Flynn in 2020 and wrote the opinion that set the standard for the jail of those charged with the riots in the Capitol before their trials.
Four collections of Trump White House documents that have been reviewed by the National Archives are set to be forwarded to the House committee if Trump ultimately loses the appeal. Witnesses called by the House, including Meadows himself, have used the ongoing trial as a shield to avoid testifying.
Currently, the appeals court has temporarily suspended the National Archives’ publication of the Trump competition records, pending the issuance of another order.
“The problem here is that we’re on a schedule – in terms of a 30-day timeframe – and getting a preliminary injunction so that we can fix these issues is really important on our end, and that’s where I think. that we are, ”Clark, Trump’s attorney, said.
This story has been updated with additional developments.