The case came before the US Court of Appeals for the DC Circuit, after a federal judge earlier this month refused to block the release of Trump documents from the National Archives. President Joe Biden is refusing to assert executive privilege on the documents, so Trump is asking the court to consider asserting his privilege instead.
The case involves some of the more volatile legislation surrounding whether a former president can sue claims of executive privilege when incumbents are transparent. And the three judges on the appeals panel – all Democratic appointees – signaled that they found some of the case’s questions difficult, even as they expressed doubts about the judge’s claims. Trump.
It is almost guaranteed that, however they do decide, the case will eventually be appealed to the Supreme Court.
Judges ask why a former president should overtake the current one
The appeals court was less sympathetic to Trump’s arguments about blocking the release of the document.
“Why should the former president be the one to make that decision when you’re talking about running another branch of government?” Judge Ketanji Brown Jackson said while the Trump team was debating its case.
“It seems that the current president not only has the element of secrecy that he is thinking about, but that the current obligation to the interests of the United States is even broader than what the former president would be concerned with.” She added.
Judge Patricia Millett told Trump’s attorney Justin Clark of other things courts must consider when considering these types of disputes.
“You’re going to have to come up with something more powerful to overcome the incumbent president’s decision to quit,” Millett said. “You would have to change the score on that scorecard,” the judge said, which would add up to a score in favor of the president following Supreme Court precedent.
The court showed very little interest in reviewing the White House records document by document.
In a flurry of signs for Trump, the judges vehemently denied a request from the former President’s legal team that the court review records from his presidency, document by document, to determine whether they should be retained with Congress.
Trump’s approach will likely prolong court proceedings – effectively blocking access to the House for a long time. The trial-level judge had previously rejected the proposal.
“As I understand it, the former is not about the content of the documents or when you see them, but simply what happens when the sitting president says I won’t invoke executive privilege. for these documents. to this specific request,” Millett said early in Tuesday’s hearing.
Judge Robert Wilkins said Trump’s argument for reviewing each document was “inconsistent” with Nixon-era court precedent.
“That’s not how we say we do this, at least the way I read those cases,” Wilkins said. He pointed out that the court that was considering Nixon’s case had not heard every single Watergate tape.
There are big questions this court may need to deal with if a former president and current president disagree.
As the hearing unfolded with Trump’s side, the panel’s judges signaled they were fighting what a court could ultimately do to resolve disagreements between past and current presidents. .
“We don’t just flip a coin or pull out a straw or something. What, what tests do we have to use?” Wilkins asked Doug Letter, the attorney representing the January 6 committee of the House.
The judges pointed out that the law governing historic records submitted to Congress does not explain what would happen if a former president continued to challenge the current president over a privileged decision.
They also challenged the attorneys with several hypothetical scenarios – a sitting president releasing a document to “revenge” his predecessor, a former president claiming the release of a White House document by Will he endanger the lives of American agents abroad, or four former presidents begging a current President to keep sensitive information secret – to grill Trump’s opponents about whether there are any situations in which the determination of the privileges of an incumbent may be foreseen by the court.
The judges also asked whether the court could prevent Congress from making public White House documents it obtained from the National Archives. In this case, Congress cannot guarantee absolute secrecy, Letter, the House counsel, pointed out.
The letter dismisses hypothetical scenarios, describing them as far from the case in court. He stressed that in this dispute there is no clash between the legislative and executive branches, so there is no separation of powers that the courts need to deal with.
Brian Boynton, an attorney with the Department of Justice, took a different approach to helping the court navigate those questions. He suggested that it avoids drawing any sweeping conclusions about whether the courts can side with a former president in privilege disputes with incumbents.
“We don’t think you need or should make a ruling saying the incumbent always wins, because this is an unresolved area of law and it’s not necessary to draw conclusions here,” Boynton said. .
Still, Boynton maintains that few scenarios exist where a former president could supersede the decisions of the current incumbent.
Involvement of the Supreme Court may be coming soon
Since Trump filed the lawsuit last month, he has had to act quickly to seek a court order blocking the release of the document, as the National Archives had originally planned to release the first batch of the document. hundreds of pages mentioned on 12.11.
U.S. District Judge Tanya Chutkan, who oversaw the first round of the case, ruled against Trump before that deadline, but the appeals court has placed administrative hold on the release of the document and so far. moved very quickly to advance the case.
The pause has affected the House investigation, with subpoenaed witnesses such as Steve Bannon and Trump’s former White House chief of staff Mark Meadows pointing to the ongoing court to avoid or delay the lawsuit. with the House of Representatives.
As Tuesday’s hearing drew to a close, Millett acknowledged that the case was “very, very urgent and everyone needs to proceed with a very tight timeline.” She suggested that if the court ruled against Trump, it could still take two weeks to prevent his National Archives from releasing the documents, so the case could be appealed to the Court. Supreme Court.