Appeals court weighs Trump’s push to block Jan. 6 records
'It would be astonishing for this court to override the current president and Congress,' House General Counsel Doug Letter told the D.C. Circuit
A federal appeals court seemed likely Tuesday to deny Donald Trump’s request to block some White House records from going to the House select committee investigating the Jan. 6 attack on the Capitol, but it struggled with how judges should consider a former president’s contention that records should be protected from disclosure.
A three-judge panel of the U.S. Court of Appeals for the District of Columbia Circuit heard more than three hours of oral argument in Trump’s lawsuit to keep documents from the National Archives and Records Administration from going to the House.
Trump has asserted executive privilege over the documents and argues that the disclosure would hurt the office of the president by compromising the ability of presidents to get full and frank advice from advisers without worrying that it will soon become public and be used as a political weapon.
But President Joe Biden disagreed with that assessment for at least the first three batches of records in the House panel’s request, in a determination that the public interest in the House probe outweighs the confidentiality concerns underlying executive privilege.
The D.C. Circuit panel has paused the disclosure of records while it considers what to do, on an expedited timeline that heightens expectations that the panel would rule quickly thereafter. Whichever side does not prevail at the appeals court is expected to appeal the case to the Supreme Court.
The questions from the three judges Tuesday made it appear that they read a federal law to mean that Trump and other former presidents can go to court to challenge a decision on executive privilege on White House records from their presidency.
But like so many legal questions related to the Trump presidency, courts have never decided how to referee such a dispute between a current and former president.
At one point, Judge Robert L. Wilkins told House General Counsel Doug Letter that whether or not the incumbent president would prevail in this case “doesn’t really tell us how a court should determine whether the incumbent president would prevail.”
“I mean, we don’t just flip a coin or draw straws or something. What tests are we supposed to use?” Wilkins said.
Letter responded that the current president is in the best position by far to determine the interests of the executive branch, and “it would be astonishing for this court to override the current president and Congress.”
“This president, as we know, said we have an extremely strong interest here in the select committee being able to carry out this investigation as part of its legislative duties and responsibilities,” Letter said. “And therefore, in that situation, what the court should do is say, ‘The current president has spoken, and that’s it, we’re done.’”
Letter also told the panel that he found it very difficult to come up with a hypothetical “that is anywhere near realistic” in which any court would feel comfortable second-guessing a president’s determination on whether something should be protected by executive privilege.
Judge Patricia Millett told Letter that the law specifically envisions a former president to have been able to obtain a court order to protect records over the views of the incumbent president. “And I assume it wasn’t because they were envisioning the sort of inconceivable hypotheticals that you’re talking about,” Millett said.
Later, Brian Boynton from the Justice Department, arguing for the Biden administration, told the panel that having a court pass judgment in this kind of dispute raises its own concerns over separation of powers. And Boynton said any court review of Biden’s decision would have to be “highly deferential” to the president and couldn’t delve into motivations, so a former president could be successful only in “the most extreme cases” where the court believes it isn’t in the best interest of the United States for the records to be disclosed.
Millett countered that the court review can’t be an entirely empty exercise. The Supreme Court, in a related case from the Nixon era, had recognized that the way to ensure that executive privilege remains real is “to allow for some way of vindicating executive privilege that goes beyond the minute a president becomes a former president,” Millett said.
“If we have a constitutional scheme in which that privilege turns off at 12:01 p.m. Jan. 20, it won’t be a real privilege at all for the preceding four years,” Millett said. “It just, it won’t, because everyone will know the clock is ticking. And, you know, God bless the president who tries to get confidential advice on something imperative on Jan. 19, because everyone’s going to know, well, tomorrow it’s coming out.”
On the other hand, Millett also told a Trump attorney, Justin Clark, that the former president would have to come up with something that the current president missed in the decision to waive executive privilege for these documents. The previous Supreme Court case related to Nixon made clear that the current president gets “extra points on the scoreboard” over a former president, she said.
“You’re going to have to come up with something more powerful that is going to outweigh the incumbent president’s decision to waive, right?” Millett said. “You’re going have to change the score on that scoreboard.”
The House Jan. 6 panel requested records related to dozens of people, both in and out of the Trump administration. That includes Trump and his family members, as well as “any documents and communications involving White House personnel and any Member of Congress” related to the Jan. 6 attack or the validity of the presidential election.
Trump’s lawsuit is aiming to counter the House push to get information related to the Jan. 6 attack, which also has included finding former White House adviser Stephen Bannon in contempt of Congress for failing to comply with a congressional subpoena. A grand jury indicted Bannon on that misdemeanor charge.
Earlier in November, U.S. District Judge Tanya Chutkan in Washington ruled that the House had the power to get the archives records, even if the request was broad. And she contended that the sitting president has the final word on whether any records should be protected under executive privilege — not a former president or court.
Trump’s lawyers have said that the court would unleash a “new weapon” for lawmakers to harass political rivals, while the House contends it has an urgent need to get the records to shape the committee’s investigation and any potential legislation to ward off “future attacks on democracy” in upcoming elections.