Trump’s lawyers fumble as judges grill them about whether Trump has the right to dictate which Jan. 6 documents Congress gets

Former President Donald Trump.
Former President Donald Trump.

  • An appeals-court panel grilled Trump’s lawyers over his privilege claims on January 6 documents.
  • All three judges expressed skepticism of Trump’s effort to stop the documents being turned over.
  • A federal judge previously rejected Trump’s claim, writing, “Presidents are not kings.”

Lawyers for former President Donald Trump and the House select committee investigating the January 6 Capitol insurrection sparred in court Tuesday over issues of executive privilege hanging over the committee’s probe.

The case centers on Trump’s efforts to block the Biden administration from turning over documents the committee says are crucial to its examination of Trump’s actions immediately before, during, and after the deadly Capitol riot. Trump asserted executive privilege over the documents, but the Biden White House declined to do the same and authorized the National Archives and Records Administration to turn over the materials to Congress.

Trump filed a lawsuit in response, but a federal judge earlier this month rejected Trump’s privilege claims, saying that while the former president has the right to assert privilege, President Joe Biden is not required to honor it.

On Tuesday, Trump’s defense lawyer Justin Clark argued before a three-judge appeals-court panel in Washington, DC, that the central question in the case is what happens when Congress requests a document that could be privileged. 

Judge Patricia Millett, an Obama appointee, pushed back on that characterization, saying that the issue wasn’t whether the contents of the documents are covered by executive privilege, but what happens when an incumbent president declines to assert privilege and a former president seeks to overturn that decision.

“So what do we do with this dispute between a current and a former president?” Millett said.

Clark acknowledged that Millett was “fundamentally right,” adding, “the question before the court is what rights do a former president have … with his or her documents with respect to executive privilege, and an incumbent president, and how do those come about?”

‘I’m still confused as to why the former president gets to make that decision’

Judge Ketanji Brown Jackson, who was appointed to the court by Biden earlier this year, said that the argument boils down to who determines whether it’s in the US’s best interest to disclose presidential records. “Is it the current occupant of the White House or the former who does have some interest in the confidentiality of the documents?”

Jackson also pointed to House lawyers’ contention that they couldn’t think of any precedent in which a former president had final say on issues related to current interactions between branches of government. The judge asked Trump’s lawyers whether they knew of any such circumstance and why they believe Trump has the right to make that call now.

Clark pointed to a federal statute that he said authorizes an outgoing president to specify time periods in which the courts and the public are barred from obtaining information contained in some presidential records.

But Jackson pushed back, saying that the statute related to the release of documents to the public, not the legislative branch. She also noted that there is an exception that says that when either chamber of Congress requests presidential records, a former president does not have the right to assert privilege.

Clark conceded Jackson’s point and noted that Congress must demonstrate a legislative need to obtain documents that are not otherwise available.

“But again, Mr. Clark, I guess I’m still confused as to why the former president gets to make that decision,” Jackson said. “It seems to me that this exception applies to the archivist in terms of … his determination that when Congress is presenting a request, that it satisfies this request, that it satisfies these requirements, and therefore the incumbent president through the archivist is deciding that, OK, this is conduct of the business, it’s not otherwise available. Why is it that the former president is the one who gets to decide whether or not the statutory criteria for appropriate legislative requests is satisfied?”

Judges express deep skepticism of Trump’s argument

Clark and Millett also sparred over hypothetical scenarios in which an incumbent and their predecessor might disagree on whether information should be released to the public or to another branch of government.

Millett asked Clark what would happen if a current president requested access to documents from a previous administration for national security reasons, and whether the former president could block that and ask the courts to intervene.

Clark replied that he couldn’t imagine a circumstance in which such documents would not go through a confidential review process.

“I can’t envision a situation where something that was truly pressing, foreign policy-related, that was time-sensitive, that wasn’t going to be released to the public, or that wasn’t going to be released to another branch outside of the White House and the executive branch, that that would arise —”

“You can envision that and I can envision other hypotheticals as well,” Millett interjected.

Jackson also later indicated that she wasn’t sure Trump had the right to bring a lawsuit despite Supreme Court precedent and the Presidential Records Act.

Clark said that Nixon v. GSA, a landmark Supreme Court case centering on executive privilege and if the public has the right to view documents that a former president deems “confidential,” determined that the former president has some rights over privileged documents.

He added that the Presidential Records Act gives a former president the right to file a legal challenge related to that. But Jackson said that if Trump’s position was legally correct, Nixon should have won the Supreme Court which the GSA won in a 7-2 ruling.

She also asked Clark if former presidents should be afforded the same deference from courts that incumbent presidents get.

Clark said he didn’t believe so, adding that there needs to be an “objective test.” But Millett noted that the Supreme Court was “explicit” in its Nixon v. GSA ruling that the rights of a former president are diminished compared to those of an incumbent when determining what’s in the best interest of the executive branch.

After some more back and forth, Clark conceded that all other things equal, Nixon v. GSA established that the decisions of an incumbent are more weighty than those of a predecessor.

The judges also noted that Trump’s team hasn’t articulated a specific need for the court to determine whether his assertion of executive privilege outweighs Biden’s decision to turn over the documents.

Judge Robert Wilkins pointed to Trump’s request that a court comb through the documents at issue to determine if they’re subject to privilege claims. “It seems to me that your argument is inconsistent with our precedent,” Wilkins said.

Overall, the panel expressed deep skepticism of Trump’s argument, questioning at length why a court has jurisdiction over Trump’s dispute with Biden, as well as the overarching argument that a former president can prevail over an incumbent in such a scenario.

‘There simply is no separation of power claim that a former president can make’ in this case

When the government was up, the judges flipped the script, and Millett asked House counsel Douglas Letter to lay out a scenario in which a former president can go to court to stop an incumbent from releasing documents covered under the Presidential Records Act.

Letter said that they’d gone through several hypotheticals but found it difficult to come up with any in which the incumbent wouldn’t prevail, though he added that they could envision something “extremely strange” if they had to, in which the incumbent was vastly overstepping the boundaries of their power.

He also noted that in Nixon v. GSA, former President Richard Nixon was acting as a private citizen and asserting privilege over private property. In this case, Letter said, Trump has made clear that he’s functioning only in his capacity as the former president, and not as a private citizen. 

Letter also emphatically rejected Trump’s claim that this dispute involves two branches of government.

“There is no clash here between the branches. The president has made a decision that he explained about the important interests of the American people in getting — having the select committee get to the truth here,” Letter said, referring to Biden. “And so the president is completely in agreement with Congress in this situation … there simply is no separation of powers claim that a former president can make.”

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