The DC US Circuit Court of Appeals cast major doubt on former President Trump’s arguments that the court should block the release of his presidential documents for Congress’ January 6 investigation.
Over the course of a three hour and 40 minute hearing Tuesday, the judges expressed skepticism of Trump’s claims, as they grappled with the question of what role courts should play in disputes when an incumbent president has declined to assert an executive privilege claim that a former president seeks to assert.
“This all boils down to who decides. Who decides when it is in the best interest of the United States to disclose presidential records? Is it the current occupant of the White House or the former?” said Judge Ketanji Brown Jackson of the DC Circuit Court of Appeals.
The Trump team was battered with tough questions from the three judges, who signaled that they were not interested in doing document-by-document review of the records Trump says should be withheld. However, the judges also grilled lawyers for the House and President Joe Biden – who are in agreement that the documents should be disclosed – about scenarios where an assertion of privilege from a former president could trump a waiver of that privilege from the incumbent.
“We don’t just flip a coin or draw straws or something. What 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 about communications in the West Wing as Trump sought to overturn the 2020 election result and his supporters raided the Capitol. Trump lost his first round in court in the case, more quickly and resoundingly than his losses when he tried to claim broad protections from investigations while he was President.
Yet by raising major, unsettled questions about the power of former presidents to control information from their time in office, the case appears to be on a path to the Supreme Court.
Trump has argued he should be able to assert executive privilege over records such as call logs and the handwritten notes of his top advisers. The Biden administration has declined to keep January 6-related White House documents confidential.
“All three branches of government have acknowledged that there’s a presidential – a right of former presidents to be able to challenge the designation in release of presidential records. The Congress did it through the adoption of the statute,” Jesse Binnall, a lawyer for Trump, argued.
The judges grilled Binnall on some of the procedural questions that have arisen in the case, before the arguments turned to the merits of Trump’s arguments, which were presented Tuesday by Trump lawyer Justin Clark.
Judge Patricia Millett, another member of the panel, questioned Clark’s focus on the Trump presidential documents that have already been released to Congress without a challenge from Trump.
Millett said that she did not see the case being about the content of the documents Trump is seeking to block, but what to do when there is a dispute between the current and former presidents over the records release.
Examining a 1977 Supreme Court opinion
In a troubling sign for Trump, at least one judge on the panel said she had a different interpretation than the Trump team of a milestone Supreme Court opinion that Trump is depending on in the case.
Jackson suggested that she did not see the 1977 decision in Nixon v. General Services Administration giving Trump the legal wiggle room to challenge in court the current president’s decision to waive privilege.
“When you have a conflict of incumbent and former, [the] incumbent gets to decide,” Jackson said.
Millett also zeroed in on that case, asking Clark how much weight courts should give a current president’s refusal to assert privilege over the documents.
“We have one President at a time under our Constitution,” is what that case said, Millett told Clark.
Judge Robert Wilkins, the appellate panel’s third member, brought up other court precedents from the Nixon era, and told Trump’s legal team “it seems your argument is inconsistent with our precedent.”
He was focused on Clark’s claim that, in these disagreements between current and former presidents, courts might have to review the disputed records document-by-document.
“That’s not the way we say we do this, at least the way I read those cases,” Wilkins said.
Millett then dug in, with an even harsher set of questions for Clark.
“Stop. Please stop!” she said, cutting him off.
Once the current president makes a call on 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 a wit for a court to say, ‘It’s executive privilege, it’s not executive privilege,’” she said.
Later in on, in her questions for Doug Letter, the lawyer representing the House’s January 6 committee, Millett asked what limits there were in an incumbent president’s ability to overrule an assertion of privilege by a former president. She asked Letter about a scenario where an incumbent was seeking the release of a former president’s documents merely to “avenge” his predecessor, and she offered another hypothetical where a former president raised concerns about the release of presidential documents putting lives of foreign agents at risk. Wilkins put forth a scenario where courts were weighing an assertion of privilege by four former presidents against the waiver of that privilege by the incumbent.
Letter acknowledged that there might be some “weird” scenario where the current president wasn’t the ultimate arbiter of executive privilege, but he stressed that those hypotheticals were very far from the case before the court.
Brian Boynton, the Justice Department attorney arguing on behalf of the Biden administration said that for now the DC Circuit could avoid saying whether courts could ever side with former president over an incumbent in such disputes.
“This really should be a straightforward case … President Biden’s decision was eminently reasonable,” Boynton said.
Handover on hold
The National Archives was set to begin turning over records this month to Congress, but Trump’s lawsuit has put that on hold, potentially slowing parts of the House committee’s investigation. Trump has also warned the appeals court against giving Congress too much power.
The House said it needs the more than 700 pages of disputed Trump White House records, from close advisers including then-chief of staff Mark Meadows and press secretary Kayleigh McEnany, so it can learn enough about Trump’s efforts for Congress to make laws that could protect future elections. The Biden administration has endorsed the House learning as much as it can about Trump and the attempted coup.
Judge Tanya Chutkan of the DC District Court previously smacked down all of Trump’s arguments in the case. “Presidents are not kings, and Plaintiff is not President,” she wrote in her opinion earlier this month.
Presidential privilege “exists for the benefit of the Republic, not any individual,” Chutkan also wrote.
Now the DC Circuit Court of Appeals could rule quickly. The panel of appellate judges – Millett, Wilkins and Jackson – are all appointed by Democrats and moved fast to schedule the case for argument, bringing it before them only three weeks after Chutkan ruled. Jackson is already known to oppose Trump’s broad executive privilege claims, having written years ago that “presidents are not kings” when Trump tried to block a congressional subpoena of his former White House counsel, Don McGahn.
So far the panel has shown an inkling of doubt. Last week, they told Trump, the House and the Biden administration to be prepared to address questions of whether the court can even decide a case like this – in addition to the arguments the parties are already prepared to make.
Wilkins also has been a strong voice on recent politically charged cases. He wrote a strong dissent against the dismissal of former Trump national security adviser Michael Flynn’s guilty plea in 2020 and authored the opinion that set the standard for the jailing of Capitol riot defendants before their trials.
Four collections of records from the Trump White House that have been reviewed by the National Archives are poised to go to the House committee if Trump ultimately loses the appeal. Witnesses subpoenaed by the House, including Meadows himself, have used the ongoing court case as a shield to skirt testifying.
Currently, the appeals court has put a temporary hold on the National Archives releasing the records Trump contests, pending its issuance of another order.
“The concern here is, we are on a timeline – in terms of a 30 day timeline – and getting a preliminary injunction so we can hash out these issues is really important on our end, and that’s where I think we are,” Clark, the Trump attorney, said.
This story has been updated with additional developments.