WASHINGTON — A panel of judges on Tuesday questioned whether they had the authority to grant Donald Trump’s demands and overrule President Joe Biden’s decision to grant Congress documents related to the Jan. 6 insurrection led by Trump’s supporters.
But the judges also noted that there may be times when a former president would be justified in trying to stop the incumbent from releasing records.
The U.S. Court of Appeals for the District of Columbia Circuit heard arguments from lawyers for former President Trump and the House committee seeking the records as part of its investigation into the Capitol riot. Trump’s attorneys want the court to reverse a federal judge’s ruling allowing the National Archives and Records Administration to turn over the records after Biden waived executive privilege.
Hundreds of Trump supporters marched to the Capitol on Jan. 6 from a rally near the White House where the president had challenged them to go and “fight like hell” to stop Congress’ certification of Biden’s election victory. Some broke into the Capitol, fighting past police, and dozens now face federal charges.
Two Trump allies, former adviser Steve Bannon and former chief of staff Mark Meadows, have resisted efforts by the House panel to obtain documents and question them about possible meetings with Trump before the riot. The Justice Department has indicted Bannon on a contempt of Congress charge. Meadows, seeking to avoid the same, is now cooperating, the committee’s chairman said Tuesday.
The National Archives has said that the documents in question in the current Trump case include presidential diaries, visitor logs, speech drafts, handwritten notes “concerning the events of January 6” from the files of former chief of staff Meadows, and “a draft Executive Order on the topic of election integrity.”
Compared to Chutkan, the three judges on the appeals court have spent relatively little time weighing the importance of the documents themselves. They instead focused most of the hearing Tuesday on what role federal courts should have when an incumbent president and former president are at odds over records from the former’s administration.
The judges sharply questioned both sides and challenged them with hypothetical scenarios.
To Trump’s lawyers, Judge Patricia Millett suggested a situation where a current president negotiating with a foreign leader needed to know what promises a former president had made to that leader. The incumbent might seek to release a transcript of a phone call or other records from the previous administration “to protect our interests,” the judge said.
“To be clear, your position is that a former president could come in and file a lawsuit?” Millett said. Trump lawyer Justin Clark responded, “That is our position.”
To a lawyer for the House committee, Millett raised a scenario where a newly elected president might seek retribution against a disliked predecessor. The new president and a Congress led by the same party might declare that there was a national security interest in releasing all of the former president’s records, even at the risk of endangering people’s lives, she said.
“Needless to say, the former president comes to court, (says), ‘Hang on,'” Millett said. “What happens?”
She did not say she was referring to any president and rejected committee lawyer Douglas Letter’s response referencing a president who “fomented an insurrection.”
“We’re not going to make it that easy,” she said.
Letter argued the determination of a current president should outweigh predecessors in almost all circumstances and noted that both Biden and Congress were in agreement that the Jan. 6 records should be turned over.
“It would be astonishing for this court to override the current president and Congress,” Letter said.
Democratic presidents nominated all three judges who heard arguments Tuesday. Millett and Robert Wilkins were nominated by former Barack Obama, and Ketanji Brown Jackson is a Biden appointee.
Given the stakes of the case, either side is likely to appeal to the Supreme Court.
Despite Trump’s false claims about a stolen election — the primary motivation for the violent mob that broke into the Capitol and interrupted the certification of Biden’s victory — the results were confirmed by state officials and upheld by courts. Trump’s attorney general, William Barr, has said the Justice Department found no evidence of widespread fraud that could have changed the results
In explaining why Biden has not shielded Trump’s records, White House counsel Dana Remus has written that they could “shed light on events within the White House on and about January 6 and bear on the Select Committee’s need to understand the facts underlying the most serious attack on the operations of the Federal Government since the Civil War.”
Trump has called the document requests a “vexatious, illegal fishing expedition” that was “untethered from any legitimate legislative purpose,” in his lawsuit to block the National Archives from turning over the documents.
In their appeal to the circuit court, Trump’s lawyers said they agreed with Chutkan that presidents were not kings. “True, but in that same vein, Congress is not Parliament — a legislative body with supreme and unchecked constitutional power over the operations of government,” they wrote.
Trump has argued that records of his deliberations on Jan. 6 must be withheld to protect executive privilege for future presidents and that the Democrat-led House is primarily driven by politics. The House committee’s lawyers rejected those arguments and called Trump’s attempts to assert executive privilege “unprecedented and deeply flawed.”
“It is difficult to imagine a more critical subject for Congressional investigation, and Mr. Trump’s arguments cannot overcome Congress’s pressing need,” the committee’s lawyers said.
Nomaan Merchant, Associated Press