“Who decides when it’s in the best interest of the United States to disclose presidential records? Is it the current occupant of the White House or the former?” Judge Ketanji Brown Jackson pressed Trump’s attorney.
When else in history has a former president had the “final say,” Jackson asked.
Judge Patricia A. Millett noted that past Supreme Court decisions give more deference to the determinations of the sitting president.
“We have one president at a time under our Constitution,” Millett said.
But she also expressed concern that future presidents could be hobbled if the confidentiality of their deliberations were to expire the minute they leave office. Facing a first-of-its-kind dispute between Trump and Biden, she and the other judges struggled to come up with what rules to apply.
“Whatever the incumbent president says, goes?” Judge Robert Wilkins asked the lawyer for House Speaker Nancy Pelosi (D-Calif.). “We don’t just flip a coin.”
The judges did not say how or when they would rule after a 3-1/2 hour hearing that probed the limits of the separation of powers, Supreme Court precedent over the ownership of presidential records and a statute governing their release. The panel did indicate that it understands the urgency of the committee’s work. However the D.C. Circuit rules, the Supreme Court is likely to be asked to intervene.
The House investigative committee in August requested Trump’s official communications and activities leading up to lawmakers’ confirmation of the electoral college results the day a violent riot by Trump supporters — angered by his unfounded claims that the 2020 election was stolen — forced the evacuation of the Capitol.
Trump sued, demanding that hundreds of pages of his White House call and visitor logs, emails, draft speeches and notes be kept secret. He argued he had residual rights to executive privilege as former president even though President Biden agreed to the release of the material.
Trump’s attorneys are asking the appeals court to block release of the documents and to reverse a lower-court ruling against him. Attorney Justin R. Clark said that former presidents retain the right to object and that such disputes should be settled in court.
Trump’s lawyers have accused congressional Democrats of launching the probe to intimidate and harass him and his closest advisers in an effort untethered to any “valid legislative purpose.”
“The stakes in this case are high … It is naive to assume that the fallout will be limited to President Trump or the events of January 6, 2021,” Trump attorneys Jesse R. Binnall and Clark wrote.
“Every Congress will point to some unprecedented thing about ‘this President’ to justify a request for his presidential records. In these hyperpartisan times, Congress will increasingly and inevitably use this new weapon to perpetually harass its political rival,” Trump’s attorneys argued.
The appeals court is reviewing the decision of U.S. District Judge Tanya S. Chutkan of D.C., who rejected Trump’s claims in a withering ruling Nov. 9, saying the material should be released.
“Presidents are not kings, and Plaintiff is not President,” Chutkan wrote, ruling that an ex-president’s residual right to withhold records from Congress after leaving office does not continue in perpetuity.
Chutkan said Trump failed to identify any personal “injury to privacy, property, or otherwise” that he would suffer from the production of records.
As for the presidency, Chutkan said that executive privilege serves the republic — by ensuring presidents receive “full and frank advice” from advisers without fear of public embarrassment — not any individual, and that the incumbent president is best positioned to evaluate and balance the long-term interests of the executive branch.
Chutkan noted that former presidents waived executive privilege when dealing with matters of “grave national importance,” including the Watergate break-in of Democratic National Headquarters by Richard M. Nixon’s 1972 reelection campaign, the arms-for-hostages Iran-contra affair under Ronald Reagan, and the 9/11 terrorist attacks during George W. Bush’s presidency.
The D.C. Circuit blocked the imminent release of records and fast-tracked oral arguments for Tuesday.
All three appellate judges said Tuesday that Trump had failed to show what specific harm would come to him personally from the release of the initial set of documents Congress requested.
Clark replied that the harm is the “constitutional harm to the executive,” and that the court should block release of the records and at least conduct a document-by-document review balancing the sensitivity of release and the public interest.
But in court filings House General Counsel Douglas N. Letter called Trump’s claims “unprecedented and deeply flawed,” saying the ex-president is asking the courts to impede the work of Congress on a “pressing” public matter even when both the executive and legislative branches agree that the records should be disclosed.
“It would be astonishing for this court to override the current president and Congress,” Letter argued Tuesday. “These are key documents Congress should have and they should have them right now.”
Acting Assistant Attorney General Brian M. Boynton, representing the National Archives, said in court filings that Trump sought to whitewash the circumstances of the Jan. 6 attack and to recast a violent threat to the peaceful transfer of power as a garden-variety political dispute, ignoring Biden’s determination that the extraordinary event required a full public accounting.
In response to questions Tuesday, Boynton assured Millett that the administration is not just “willy nilly” disclosing privileged information. “The circumstances in this case are extraordinary, involving an attack on the Capitol,” Boynton said.
Boynton argued that courts should not second guess a president’s decision to release documents over a predecessor’s objections, and that any review be “highly deferential” to the sitting president, who the Supreme Court has found is best positioned to defend the interests of the executive branch.
Jackson expressed reluctance at any attempt by a former president “to conscript the court” to resolve a fight with a successor over executive privilege. Millett seemed to agree to a point, such as in an urgent dispute involving a matter of national security or foreign affairs.
Nevertheless, Millett said Supreme Court precedent and congressionally approved statutes allow former presidents to challenge such determinations in court, and that a sitting president’s authority is not unlimited.
At issue is the Presidential Records Act, a law passed by Congress to ensure that a president’s official records belong to the people, not the occupant of the office, after the Supreme Court in 1977 rejected Nixon’s attempt to stop the release of White House tapes and documents from the Watergate scandal.
Attorneys for the House and the Justice Department have argued against any delay, which could run out the clock on the investigation before the 2022 midterm elections, when Republicans hope to wrest control from Democrats.
The legal fight over Trump’s documents foreshadows similar fights over the House investigation as it has issued at least 40 subpoenas, including those to former Trump adviser Stephen K. Bannon.
The Justice Department criminally charged Bannon with contempt of Congress last month for failing to respond to the committee after the House referred his case for prosecution. Bannon’s defense has asserted that he acted on advice of counsel after Trump invoked executive privilege.