WASHINGTON — Federal appeals judges expressed deep skepticism Tuesday at arguments by lawyers for Donald Trump that the former president — and, in theory, any former president — should have wide discretion to take their successor to court over the fate of archived White House records.
The marathon 3.5-hour hearing before the US Court of Appeals for the DC Circuit marked the latest phase of Trump’s effort to keep some measure of power even after leaving office. Trump had appealed after a federal judge earlier this month refused to stop the National Archives from turning over some of his White House records to the congressional committee investigating the Jan. 6 attack on the Capitol. The three-judge DC Circuit panel sounded wary of giving a past president free rein to ask a court to second-guess an incumbent’s decisions about executive privilege and what was in the country’s best interest in the present.
Trump’s last-ditch attempt at shielding his administration records from the committee has managed to delay the production of documents to the Jan. 6 committee for several weeks; the Archives were originally set to turn them over on Nov. 12. Trump’s lawyer Justin Clark told the court on Tuesday that if they lose their appeal they plan to petition the US Supreme Court to hear the case, and would ask for another order preventing the committee from getting the documents in the meantime.
The Jan. 6 committee had asked the Archives for Trump administration records spanning the month before thousands of Trump supporters descended on the US Capitol and in the weeks immediately after. After the White House notified the Archives that Biden wouldn’t assert executive privilege over the documents, Trump intervened and said that he wanted to claim the privilege. Biden refused to back that, and under federal law, a former president’s privilege claim only gets teeth if the incumbent supports it. Trump filed suit in October.
On Nov. 9, US District Judge Tanya Chutkan denied Trump’s request for a preliminary injunction blocking the Archives from turning over the records. She wrote at the time that “the public interest lies in permitting — not enjoining — the combined will of the legislative and executive branches to study the events that led to and occurred on January 6, and to consider legislation to prevent such events from ever occurring again.” Trump immediately took the case up to the DC Circuit.
The appeals court judges on Tuesday probed — and occasionally tore apart — arguments by Trump’s attorneys that a former president should be able to sue a current president over executive privilege decisions in a broad array of situations, and that the incumbent shouldn’t get as much weight in those fights as Congress and the executive branch were arguing for. The panel featured Judge Ketanji Brown Jackson, who was Biden’s first nominee to the DC Circuit, and two judges confirmed under the Obama administration, Patricia Millett and Robert Wilkins. Millett had been on a three-judge panel that previously ruled against Trump in his fight with House Democrats over a subpoena for his financial records.
In one notable exchange, Millett asked Clark about a hypothetical scenario where a sitting president wanted access to a predecessor’s records because of some urgent need related to foreign relations or national security. If the incumbent overrode the former president’s desire to assert executive privilege, Millett asked if the former president could sue; courts historically have set the bar high for a situation where the judiciary second-guesses national security decisions made by the executive branch.
Clark at first tried to distinguish between that scenario and the work of the Jan. 6 committee, but Millett pressed him for an answer. Clark then responded that, yes, their overarching position was that a former president should be able to sue in that situation.
In a fight between an incumbent and a former president, Clark argued against giving the incumbent a significant advantage. He advocated for an “objective test” that pitted a sitting president’s interests against whatever reasons a former president had for wanting to keep records under seal. That argument didn’t go over well with the judges. Millett noted that the US Supreme Court had been “explicit” in a case involving former president Richard Nixon after Nixon left office that any weight given to the interests of a former president diminished over time.
When Clark argued that the district court judge should have granted their injunction and then gone through the documents to decide if they were privileged, Jackson said that was the wrong order: Trump was entitled to an injunction if he could show he was likely to win on the merits. That line of argument also got pushback from Wilkins, who told Clark, “It seems to me that your argument is inconsistent with our precedent.” Wilkins said Trump could, in theory, raise specific challenges about why certain documents shouldn’t be released — similar to when a federal agency claims documents are exempt from a public records request — but hadn’t done that.
Although the judges sounded unconvinced that Trump could win the case, and even questioned whether a court had jurisdiction over at least some of his claims, they also wrestled with the notion that a former president had no agency at all. Near the end of the hearing, Millett expressed concern that executive privilege would become meaningless if everyone knew that it expired as soon as a president left office and there was nothing they could do.
In exchanges with House General Counsel Douglas Letter, the judges pointed out that the federal Presidential Records Act — the law that governs what happens to White House records after a president leaves office — included language that anticipated some scenario where a former president could go to court to challenge the release of their records. It wasn’t clear what exactly that scenario was, they said, or what kind of legal framework a judge should apply to such a fight, however.
Wilkins asked a series of questions about whether a former president’s claim of executive privilege triggered some separation of powers concerns — Letter insisted it did not — and whether courts should engage in a more robust balancing test to consider the former president’s interests in this type of fight.
Letter said that his team had struggled to come up with a realistic situation where an incumbent wouldn’t win this type of fight. Millett presented the hypothetical of a new president who won in a landslide and planned to release their predecessor’s records as revenge. Letter began to build on that scenario by suggesting that the former president in the hypothetical had “fomented an insurrection” — alluding to the Jan. 6 investigation — but Millett cut him off, making clear she wanted to stick with the legal question at hand. Letter said a former president could have a strong argument to challenge the release of records in that type of pure vengeance situation.
Earlier in the hearing, Jackson attempted to strip away some of the more heated political rhetoric around the case. She noted that although Trump’s lawyers devoted space in their briefs to attack the legitimacy of the Jan. 6 committee’s work, he wasn’t claiming executive privilege over all of the documents that members had requested. His claims were about specific categories of records, and with that in mind, she said it sounded like some of Trump’s sweeping criticisms of the committee were “not really the point.”
Trump attorney Jesse Binnall said that Jackson was right that the injunction they wanted was limited to the documents where Trump had made a claim of executive privilege. But he maintained that their arguments that the committee’s requests were overbroad and lacked a valid legislative purpose went to the kind of balancing that they wanted the court to do in deciding if Biden was wrong to override Trump’s wishes to keep the documents at issue out of the committee’s hands.