Appeals court judges skeptical of Trump’s arguments for blocking release of his January 6 documents

Yet by raising major, unsettled questions about the power of former presidents to control information from their time in office, the case appears to be on a path to the Supreme Court.

Trump has argued he should be able to assert executive privilege over records such as call logs and the handwritten notes of his top advisers. The Biden administration has declined to keep January 6-related White House documents confidential.

“All three branches of government have acknowledged that there’s a presidential — a right of former presidents to be able to challenge the designation in release of presidential records. The Congress did it through the adoption of the statute,” Jesse Binnall, a lawyer for Trump, argued.

The judges grilled Binnall on some of the procedural questions that have arisen in the case, before the arguments turned to the merits of Trump’s arguments, which were presented Tuesday by Trump lawyer Justin Clark.

Judge Patricia Millett, another member of the panel, questioned Clark’s focus on the Trump presidential documents that have already been released to Congress without a challenge from Trump.

Millett said that she did not see the case being about the content of the documents Trump is seeking to block, but what to do when there is a dispute between the current and former presidents over the records release.

Examining a 1977 Supreme Court opinion

In a troubling sign for Trump, at least one judge on the panel said she had a different interpretation than the Trump team of a milestone Supreme Court opinion that Trump is depending on in the case.

Jackson suggested that she did not see the 1977 decision in Nixon v. General Services Administration giving Trump the legal wiggle room to challenge in court the current president’s decision to waive privilege.

“When you have a conflict of incumbent and former, [the] incumbent gets to decide,” Jackson said.

Millett also zeroed in on that case, asking Clark how much weight courts should give a current president’s refusal to assert privilege over the documents.

“We have one President at a time under our Constitution,” is what that case said, Millett told Clark.

Judge Robert Wilkins, the appellate panel’s third member, brought up other court precedents from the Nixon era, and told Trump’s legal team “it seems your argument is inconsistent with our precedent.”

He was focused on Clark’s claim that, in these disagreements between current and former presidents, courts might have to review the disputed records document-by-document.

“That’s not the way we say we do this, at least the way I read those cases,” Wilkins said.

Millett then dug in, with an even harsher set of questions for Clark.

“Stop. Please stop!” she said, cutting him off.

Once the current president makes a call on executive privilege, “You say now the former president could say let’s look at the documents” in court to make confidentiality decisions, Millett said. “It changes the analysis not a wit for a court to say, ‘It’s executive privilege, it’s not executive privilege,'” she said.

Later in on, in her questions for Doug Letter, the lawyer representing the House’s January 6 committee, Millett asked what limits there were in an incumbent president’s ability to overrule an assertion of privilege by a former president. She asked Letter about a scenario where an incumbent was seeking the release of a former president’s documents merely to “avenge” his predecessor, and she offered another hypothetical where a former president raised concerns about the release of presidential documents putting lives of foreign agents at risk. Wilkins put forth a scenario where courts were weighing an assertion of privilege by four former presidents against the waiver of that privilege by the incumbent.

Letter acknowledged that there might be some “weird” scenario where the current president wasn’t the ultimate arbiter of executive privilege, but he stressed that those hypotheticals were very far from the case before the court.

Handover on hold

Judge Tanya Chutkan of the DC District Court previously smacked down all of Trump’s arguments in the case. “Presidents are not kings, and Plaintiff is not President,” she wrote in her opinion earlier this month.

Presidential privilege “exists for the benefit of the Republic, not any individual,” Chutkan also wrote.

So far the panel has shown an inkling of doubt. Last week, they told Trump, the House and the Biden administration to be prepared to address questions of whether the court can even decide a case like this — in addition to the arguments the parties are already prepared to make.

Wilkins also has been a strong voice on recent politically charged cases. He wrote a strong dissent against the dismissal of former Trump national security adviser Michael Flynn’s guilty plea in 2020 and authored the opinion that set the standard for the jailing of Capitol riot defendants before their trials.

Four collections of records from the Trump White House that have been reviewed by the National Archives are poised to go to the House committee if Trump ultimately loses the appeal. Witnesses subpoenaed by the House, including Meadows himself, have used the ongoing court case as a shield to skirt testifying.

Currently, the appeals court has put a temporary hold on the National Archives releasing the records Trump contests, pending its issuance of another order.

“The concern here is, we are on a timeline — in terms of a 30 day timeline — and getting a preliminary injunction so we can hash out these issues is really important on our end, and that’s where I think we are,” Clark, the Trump attorney, said.

This story has been updated with additional developments.