Attorneys representing former President Donald Trump argued before the U.S. Court of Appeals for the District of Columbia Circuit on Tuesday that a “handful of documents” should be withheld from the congressional committee investigating the Jan. 6 Capitol riot.
The dispute stems from the former Republican president’s lawsuit against the Jan. 6 select committee and the National Archives, the custodian of his White House records. D.C. Circuit Judges Patricia Millett, Robert Wilkins, and Ketanji Brown Jackson all signaled skepticism toward Trump’s arguments but suggested the question “boils down to who decides,” Jackson said.
“Is it the current occupant of the White House or the former?” Jackson asked.
One Trump lawyer, Jesse Binnall, was questioned by the three judges on the panel over whether courts have jurisdiction to hear the former president’s claims and actions before the violent riot at the U.S. Capitol Building. The panel also considered that incumbent President Joe Biden has already determined that the House committee could access the materials.
But Binnall argued Tuesday that “All three branches of government have acknowledged there is a right of former presidents to challenge the designation and release of presidential records,” noting Congress “can have” a majority of the documents they seek for investigation. His primary argument was against the release of a “handful of documents” to the committee.
Jackson, a high-profile contender for Biden’s nomination to the Supreme Court, should a seat open on the bench, suggested she did not view the 1977 decision in the Nixon v. General Services Administration as providing Trump leeway to challenge in court the standing president’s decision to waive privilege.
Millett said if a court were to hypothetically weigh its decision on a document-by-document basis after the incumbent president waives against Trump’s executive privilege claims, the process of doing so would not make sense because a court could agree the documents are privileged, but it does not change the added weight of an incumbent president’s input.
“We have one president at a time under our Constitution,” Millett told Trump lawyer Justin Clark, saying she did not see the dispute pertaining to the content of the documents but how to act when there is a dispute between a current and former president about the release of records.
On Nov. 9, U.S. District Judge Tanya Chutkan rejected Trump’s arguments and said he had not recognized the “deference owed” to Biden’s determination to allow access. However, the D.C. Circuit put off allowing the committee to access the records while it considers the matter.
In her opinion, Chutkan said only an incumbent president is qualified to determine how institutions can be protected and that a former president’s interest should not override the incumbent, adding it is especially true in a case where Congress and the incumbent president agree.
The three judges on the appeals panel randomly assigned to the case were appointed to the judiciary by either Biden or former President Barack Obama, both Democrats. The D.C. court’s selection was seen as an unlucky draw for Trump, while the Jan. 6 committee has sought to bring further pressure against former Department of Justice official Jeffrey Clark, threatening to vote to hold him in contempt if he continues his refusal to cooperate.
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Arguments between the D.C. court and Trump’s attorneys went on for more than two hours Tuesday morning, and unsettled questions regarding the former president’s privilege claims will likely head to the Supreme Court regardless of the appellate court’s ruling on the matter.
