There are more than 750 pages of records that Donald Trump is fighting to keep away from investigators on the Jan. 6 Committee and on Tuesday, after oral arguments picking apart Trump’s claims to executive privilege unfolded, the judges gave the impression that they were highly skeptical of the former president.
There are call logs; speech drafts; diaries; emails; calendars and schedules; memos; and other records that the Jan. 6 Committee has sought from Trump for months as a part of its probe into the violent attack on the U.S. Capitol earlier this year. Investigators believe these records could illuminate exactly how Trump tried to subvert the election and who may have helped him coordinate an insurrection.
Trump previously asked the appeals court to overturn D.C. District Judge Tanya Chutkan’s ruling permitting the National Archives and Records Administration to transmit heaps of Trump’s presidential records to the committee after President Joe Biden opted to waive executive privilege over the materials.
Biden defended the decision last month, saying Trump’s assertion to privilege was “not in the best interest of the United States.”
It was precisely that question—who is the best person to make decisions on behalf of the country’s interest— at the center of Tuesday’s arguments at the U.S. Court of Appeals for the District of Columbia.
Judges Kentanji Brown Jackson, Robert Wilkins, and Patricia Millet presided. Arguments ran for nearly four hours.
Judge Millett, appointed by former President Barack Obama, expressed repeated skepticism that it would be a former president, not the sitting one, that would be best suited to make determinations of critical importance for the nation.
Echoing an earlier ruling from U.S. District Judge Tanya Chutkan that denied Trump’s request to keep records hidden, Millett said the U.S. has just “one president at a time.
And Biden, having already reviewed the documents being transferred from the Archives to the committee, has “made the judgment and is best positioned, as the Supreme Court has told us, to make that call for the interests of the executive branch,” Millett said.
The judge was careful to give executive privilege ample room, calling it the “lifeblood” of the executive branch, however. She acknowledged how integral this privacy can be to a functioning government.
But Trump’s claims to executive privilege over the records start to fall apart, at least under the panel’s questioning Tuesday, when one considers that he has so far failed to show any real burden on himself as a result of Biden’s decision to waive privilege.
Trump’s attorney Jesse Binnall has argued that if Trump complied with the request to submit documents, then executive privilege powers would be diminished both now and in the future.
But Millett said Tuesday Trump had failed to show burden beyond his general claims and he needs “some interest” or “some supervening interest” to make his case work.
“It won’t be enough to say, ‘See, I told you it was an executive privilege document,” Millett said. “You are going to have to come up with something more powerful that will outweigh the incumbent’s decision to waive executive privilege.”
There are “no declarations” and “no particularization” of the documents at hand.
“Is the court itself supposed to go through and make arguments that the former president has not?” Millett pressed Trump’s attorney Justin Clark.
Clark informed the panel that they could provide a privilege log later if the court opted to bar disclosure of the records.
Biden appointee Judge Ketanji Brown Jackson sided with Millett, appearing equally dubious over Trump’s failure to make the argument himself. She underlined that whatever the reasons may be, they must extend beyond the mere fact that the documents are deemed sensitive or confidential.
When an incumbent president makes a decision about whether to cooperate with Congress, confidentiality is not the only concern, she said. There’s also accommodation to various branches of government to consider and the process of negotiating as well as whatever other internal issues are at play.
A former president doesn’t have the same burdens.
“That’s a pretty weighty concern,” Jackson said of sitting presidents.
Judge Robert Wilkins, appointed by Obama, also scrutinized the legal precedent Trump’s defense team is relying on in Nixon v. General Services Administration.
Clark relied on the 1977 case to support Trump’s argument that when there is a disagreement over records between an incumbent and former president, then records should be assessed piecemeal.
“That’s not the way we do this,” Wilkins said. “At least, the way I read those cases.”
Judge Jackson also did not appear convinced by Trump’s reliance on rulings from former President Richard Nixon’s legal fights to keep records privileged nor did she appear convinced that he could make his case when relying on the Presidential Records Act.
In Nixon v. General Services Administration, the high court found that a former president had some rights over documents. The Presidential Records Act effectively codified the right of a president to challenge a court’s finding just a year later.
If the appeals court was to consider Trump’s position Tuesday as correct, then that would mean Nixon should have proven victorious in his fight to retain control over his administration’s documents.
But Nixon lost.
Clark, according to Judge Wilkins, appeared to be asking for a balancing test that was imbalanced from its inception: Trump’s team suggests that his objections to Biden’s waiver should carry as much weight today as it did when Trump was the incumbent.
So what would a former president need to prevail over the views of the sitting president?
In an exchange with Judge Millett, Doug Letter, the Jan. 6 Committee’s general counsel, argued there could be specific determinations made over documents.
The former president could then sue to challenge those determinations made by the National Archivist about what is or is not restricted in a requested transfer of records.
A former president could do that without challenging any determination made by the current president, Letter said. Then of course, a former might prevail if the current president was “acting in a way so far outside the realm of how a president is supposed to act” and had yet to be impeached.
The hypotheticals were many, Letter acknowledged, before Millett pushed ahead with another scenario.
What would happen if a new president were ushered in, and that administration’s political party held the majority in the House and Senate and that new president had a vendetta with the former administration.
“What if they said, I think it is in the interest of the United States that every single executive privilege document be released to [all of Congress and its committees] and to the public. Go do it. Just because I disagree with everything that person did. Needless to say, the former president comes to court to stop him. What then?” Millett said.
Letter said the current president would likely still prevail but when he tried to frame it specifically in the context of a president “fomenting an insurrection,” Millett shut that down and opted to return to hypotheticals.
Letter also touched on Wilkins earlier concerns over how to appropriately balance test the situation.
Letter explained that while precedent over two presidents duking it out over executive privilege was nil, the D.C. Circuit found in Senate Select Committee v. Nixon that claims of executive privilege do not apply when there isn’t a separation of powers issue at hand.
In this fight, congress and Biden both agree that there is only one executive, so there is no question over separation of powers.
Trump is therefore to bring suit in court and request an override of the executive branch. But, Letter, said, he could not imagine a realistic situation where that attempt would succeed.
Jackson pressed the House counsel about what comes next and namely, if the court decides to deny Trump’s injunction. Should the court dissolve the injunction that put a hold on the records transfer or should Trump’s request be considered by the full appeals court—11 judges— or if it should got to the Supreme Court?
Letter asked the judge to immediately remove the injunction and transfer the records as requests in short order.
Brian Boynton, arguing on behalf of the National Archives, told the panel Tuesday that the court did not need to issue a ruling on whether an incumbent always wins every challenge from a former president.
“This is an unsettled area of law and there’s no need to reach that conclusion here,” Boynton said.
Instead, Boynton recommended the court pay deference to the sitting president.
“You don’t need to get to balancing confidentiality versus need. In this case, the incumbent’s decision should prevail because the congressional need overcomes whatever residual confidentiality interests there were on behalf of the former president,” he said.
Should the appeals court side with D.C. Circuit Judge Chutkan’s ruling, then it would mark a tempered victory for the Jan. 6 committee.
Trump is all but certain to appeal en banc or to the Supreme Court. And while timing on the appeals court’s ruling is basically impossible to predict, Judge Millett did acknowledge the case was on a fast track.