The case is before the US Court of Appeals for the DC Circuit, after a federal judge earlier this month declined to halt the release of the Trump documents from the National Archives. President Joe Biden is declining to assert executive privilege on the documents, so Trump is asking the court to consider his assertion of privilege instead.
The case touches on some unsettled law around whether a former president can litigate executive privilege claims when the incumbent sides with transparency. And the three judges on the appellate panel — all Democratic appointees — signaled that they found some of the case’s questions difficult, even as they expressed doubt about Trump’s claims.
It’s nearly guaranteed that, however they rule, the case will end up appealed to the Supreme Court.
Judges ask why a former president should get to overrule the current one
The appeals court showed little sympathy for Trump’s arguments for blocking the documents’ release.
“Why should the former president be the one to make that determination when you’re talking about accommodating another branch of government?” Judge Ketanji Brown Jackson said while the Trump team was arguing its case.
“It would seem that the current president has not only the confidentiality factor that he’s thinking about, but the current duty to the interests of the United States even broader than those that the former president would be concerned about,” she added.
Judge Patricia Millett grilled Trump lawyer Justin Clark on what else the court is supposed to weigh in considering these kinds of disputes.
“You’re going to have to come up with something with more power to outweigh the incumbent president’s decision to waive,” Millett said. “You’re going to have to change the score on that scoreboard,” which, the judge said, would already be stacked with points in the president’s favor according to Supreme Court precedent.
The court appeared very uninterested in reviewing the White House records document by document.
In a series of troubling signs for Trump, the judges pushed back strongly on 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 withheld from Congress.
Trump’s approach would have likely dragged out court proceedings — effectively blocking the House from access for an extended time. The trial-level judge previously rejected this suggestion.
“The issue, as I understood, before us was not about the content of the documents or when you look at them, but simply what happens when the current incumbent president says I’m not going to invoke executive privilege as to these documents with respect to this particular request,” Millett said early in Tuesday’s hearing.
Judge Robert Wilkins said Trump’s arguments for a document-by-document review were “inconsistent” with Nixon-era court precedent.
“That’s not the way we say we do this, at least the way I read those cases,” Wilkins said. He pointed out that the court considering Nixon’s case didn’t listen to the Watergate tapes one by one.
There are big questions this court may need to address if a former president and current president disagree
As rocky as the hearing went for the Trump side, the panel’s judges signaled that they were struggling with what a court could ultimately do to settle a standoff between former and current presidents.
“We don’t just flip a coin or draw straws or something. What, what tests are we supposed to use?” Wilkins asked Doug Letter, the lawyer representing the House January 6 committee.
The judges pointed out that the law governing historical records going to Congress doesn’t spell out what should happen if a former president keeps pushing a challenge against the current president on a privilege decision.
They also challenged the lawyers with several hypothetical scenarios — a current president releasing documents to “avenge” his predecessor, a former president claiming a release of his White House documents would endanger the lives of US agents abroad, or four former presidents imploring a current president to keep sensitive information private — to grill Trump’s opponents on whether there was any situation in which an incumbent’s privilege determination could be second-guessed by a court.
The judges also asked whether the court could stop Congress from publicly releasing White House documents it obtained from the National Archives. In this case, Congress couldn’t guarantee absolute secrecy, Letter, the House lawyer, pointed out.
Letter brushed off the hypothetical scenarios, describing them as far afield from the case before the court. He stressed that in this dispute there was no clash between the legislative and executive branches, so there was no separation-of-powers question that the court needed to resolve.
Brian Boynton, a lawyer for the Justice Department, took a different approach to helping the court navigate those questions. He suggested that it avoid making any sweeping conclusion about whether courts can ever side with a former president in privilege disputes with incumbents.
“We don’t think you need to or should issue a ruling that says the incumbent always wins, because this is an unsettled area of the law and there’s no need to reach that conclusion here,” Boynton said.
Still, Boynton maintained that few scenarios exist where a former president could override the decisions of the current office-holder.
A request that the Supreme Court get involved could be coming very soon
Since Trump brought the lawsuit last month, he’s had to act quickly in seeking court orders that would stop the documents’ disclosure, as the National Archives had originally planned to release the first tranche of the hundreds of pages in question on November 12.
US District Judge Tanya Chutkan, who oversaw the first round of the litigation, ruled against Trump before that deadline, but the appeals court put an administrative hold on the documents’ release and so far has moved very quickly to advance the case.
The pause was already affecting the House’s investigation, with subpoenaed witnesses such as Steve Bannon and former Trump White House chief of staff Mark Meadows pointing to the ongoing court case to either avoid or delay cooperating with the House.
As Tuesday’s hearing was wrapping up, Millett acknowledged that the case was “very, very urgent and everyone needs to proceed on a very tight timeline.” She suggested that if the court were to rule against Trump, it could still put in place a two-week hold preventing he National Archives from releasing the documents, so the case could be appealed to the Supreme Court.