WASHINGTON – Who decides what presidential documents should remain confidential? That’s the fundamental question a three-judge federal appeals panel grappled with Tuesday in former President Donald Trump’s case to prevent a House committee from receiving records from his administration.
The House panel is investigating what Trump and his aides were doing on Jan. 6 as a violent mob stormed the Capitol. Trump is fighting the release of hundreds of pages of documents, such as call logs of who he spoke with that day and handwritten notes from aides, which he claims fall under executive privilege. But President Joe Biden has waived executive privilege for the documents.
“What do we do with this dispute between the current and former president?” asked Judge Patricia Millett, who sat on the D.C. Circuit Court of Appeals panel with Judges Robert Wilkins and Ketanji Brown Jackson.
“I think this all boils down to who decides,” Jackson added.
The arguments between lawyers for Trump, the House Jan. 6 committee and the National Archives and Records Administration, which holds the records, was scheduled for 40 minutes and lasted more than 3 ½ hours.
U.S. District Judge Tanya Chutkan rejected Trump's arguments by ruling that Biden's waiver of executive privilege outweighed the opinion of his predecessor. Chutkan also refused to block the committee's access while the case is appealed. But the appeals court postponed the release of the documents while the case is argued.
Whatever the decision, the case will set a new framework for congressional access to executive branch documents.
The case is urgent because the committee is eager to review the documents as it considers legislation to discourage upheaval surrounding the 2022 and 2024 elections.
The House committee made a sweeping request in August for documents from the National Archives and other federal agencies as the panel pieced together what led to the attack on the Capitol and how the White House responded that day. About 140 police officers were injured. Police fatally shot a woman outside the House chamber as the counting of Electoral College votes was temporarily halted and Pence and others were rushed to safety.
One of the thorniest aspects of the case is that it’s not about the separation of powers. Biden agrees that Congress deserves the documents.
But the dispute is between executives, Trump and Biden. Supreme Court precedent from a case called Nixon v. the General Services Administration holds that the current president’s view on executive privilege outweighs a former president.
Trump’s lawyers argued that it would harm the executive branch if presidents of different parties revealed each other’s confidential communications.
“If there is a disagreement, it is incumbent on the courts to make a decision about whether that privilege exists,” said Justin Clark, one of Trump’s lawyers. “Calling balls and strikes on whether or not a document is privileged or not is really ore of a technical analysis than what the archivist and the Biden administration have done here."
Millett noted that previous court decisions found that claims of executive privilege weaken over time, but that this case came soon after Trump left office.
“This one is pretty quickly on the heels of former President Trump leaving office,” Millett said. “The recency of it has to count for something in the nature of his interests.”
The first batch of documents, which was scheduled for release Nov. 12 and postponed while the appeals court considers the case, included 39 pages that Trump claimed should remain confidential under executive privilege. The pages include handwritten notes about events on Jan. 6, appointments for White House visitors and switchboard checklists showing calls to Trump and Pence, according to a court filing from the National Archives.
Another batch of records, which was scheduled for release Nov. 26 and also postponed by the court, included presidential calendars and handwritten notes about Jan. 6, a draft speech for the Save America March, a handwritten list of potential or scheduled briefings and phone calls concerning election issues and a draft executive order concerning election integrity, according to the agency.
The appeals judges wrestled with what standards courts should use in balancing the competing interests between presidents and between the executive and legislative branches. Millett said Trump’s lawyers hadn’t detailed objections to the release of specific documents.
“Your thought is that without any guidance from the former president, without any insights, any declaration, any argument even from the former president, the court itself is supposed to go through and make arguments the president hasn’t about particular documents,” Millett said.
Jackson said she was concerned about the statute not explaining what standards should be used in balancing the release of documents.
"That's what has me worried," Jackson said. “What is the court supposed to do? Do we start from scratch to determine which president has the right view of this? Do we look at the records?"
Clark suggested testing whether Congress has a critical need for the documents, whether the records are available elsewhere, whether they are privileged and whether the confidentiality can be overcome.
“The harm here is the constitutional harm to the executive branch,” Clark said.
Millett said if executive privilege ended with each change of administration, it wouldn’t be worth much.
“Everyone will know the clock is ticking,” Millett said. “God bless the president who tries to get confidential advice on something imperative on Jan. 19,” the day before the inauguration of a new president.
But Brian Boynton, a Justice Department lawyer for the National Archives, said the executive branch takes claims of executive privilege seriously.
“There is no indication that this administration or prior administrations have willy-nilly disclosed information where there is not a basis to do so,” Boynton said. “The circumstances in this case are extraordinary.”
The case deals with the Presidential Records Act, which Congress adopted after the Watergate scandal nearly a half-century ago in order to preserve administration documents.
Douglas Letter, the House general counsel, said under the statute, the Constitution and court precedent that the current president’s opinion about executive privilege would outweigh a former president – or even four former presidents.
“It would be astonishing for this court to override the current president and Congress,” Letter said.
Boynton also said it would be extraordinary for the court to overrule Biden’s waiver.
“In no other respect that we are aware of does a former president have the ability to block something the current president wants to do,” Boynton said, such as declassifying information, withdraw a state secrets privilege or an executive agreement. “It would extraordinary in any of those circumstances to think that a former president could say, ‘No, no. You can’t do that.’”
Letter argued that if the appeals court rules against Trump, the documents should be released immediately.
“This is interfering with something that is going on right now with immense speed and these are key documents,” Letter said. “They are moving at breakneck speed. Thanksgiving has not slowed us down.”
Trump’s lawyers asked for a 14-day delay in the release, to allow for a possible appeal.
This article originally appeared on USA TODAY: Jan. 6 investigation: Trump lawyers argue for blocking records