Trump’s privilege claims over Capitol riot documents face uphill climb before appeals court judges

A three-judge panel of the US Court of Appeals for the District of Columbia on Tuesday appeared sceptical of former president Donald Trump’s claim that he can block the House select committee investigating the 6 January insurrection from viewing documents created in his White House despite President Joe Biden’s decision to not exert executive privilege over them.

Mr Trump filed suit against select committee chairman Bennie Thompson and Archivist of the United States David Ferriero on 18 October after White House Counsel Dana Remus informed him that Mr Biden would not be honouring his demand that Mr Biden exert the privilege, which is meant to protect confidentiality in discussions between and among a president and his advisers, over three tranches of documents the committee has requested. A federal district judge ruled that Mr Trump does not have the authority as a former president to block the archivist from honouring Mr Biden’s decision, and Mr Trump’s attorneys were in court to appeal that ruling.

For nearly four hours, the panel — consisting of Circuit Judges Robert Wilkins, Patricia Millett and Ketanji Brown Jackson — probed lawyers representing Mr Trump, the House of Representatives, and the National Archives and Records Administration on whether they even had jurisdiction to hear the case, and if so, whether the former president’s claim that Congress should not see the records in question should be able to override the incumbent president’s choice to not invoke the privilege

The session did not start off well for Trump attorney Jesse Binnall, who was on the receiving end of pointed questioning from Judge Jackson when it was his turn to deliver arguments on whether the court had jurisdiction to hear the case to begin with. 

Judge Jackson, a recent addition to the court who is widely considered to be on Mr Biden’s shortlist for a Supreme Court vacancy should one occur, noted that the motion for a preliminary injunction which Mr Binnall filed with the district court was long on rhetoric describing the committee’s probe as politically motivated and their requests as lacking in a valid legislative purpose.

She then asked if Mr Binnall was arguing that the archivist should be barred from producing any records or just those Mr Trump has claimed privilege over.

When Mr Binnall responded that he had requested the latter course, Judge Jackson replied: “So all the talk in your briefs about overbroad legislative action, the request is too much, that there’s no purpose to it, all of that really is not the point we’re focused on — the designation of executive privilege?”

The Trump attorney replied: “That’s right, your honour,” but backtracked by suggesting that “all those issues … go into determining whether or not these … particular records are privileged and whether they should be disclosed”.

Judge Jackson responded that she was “very confused” because the arguments Mr Binnall was making in court did match those in the briefs he’d filed with the court.

“You seem to be making separate arguments about whether privilege applies, and whether or not the legislature has the authority to proceed because it’s overbroad or whatnot. You do have many places where you say suggest at least that even if this president cannot express privilege, or whatnot, the court should still enjoin the archivist because the legislature is has acted inappropriately in this case. So I hear you taking that whole second set of claims off the table in the context of this argument,” she said, at which point Mr Binnall interjected to say that he was not abandoning the claims but instead arguing that they apply to the analysis the court, in his estimation, must make before ruling.

His colleague, former Trump campaign attorney and ex-White House office of public liaison director Justin Clark fared no better when he stepped up to argue the merits of Mr Trump’s claim that his assertion of privilege should be given more credence than Mr Biden’s decision to not assert the same.

“Why should the former president be the one to make that determination when you are talking about accommodating another branch of government and seeing that the current president has not only the confidentiality factor that he’s thinking about, but the current duty to the interest of the United States that are even broader than those that the former president would be concerned about?” Judge Jackson asked.

Mr Clark responded that a section of the Presidential Records Act governing the release of former administrations’ records to the public gives Mr Trump that ability while limiting Congress’ ability to obtain records absent a “valid legislative purpose”.

His answer did not satisfy Judge Jackson, who responded that she was “still confused as to why the former president gets to make that decision”.

“I don’t see that in the statute,” she said.

His luck did not get any better with the next jurist to question him.

Judge Patricia Millett, an appointee of former president Barack Obama who has served on the court since 2013, pressed Mr Clark on whether, under Mr Trump’s view of the law, an ex-president could go to court to stop the archivist from allowing his successor to access documents created during his prior administration.

She laid out a scenario in which a sitting president “is engaged in some extremely sensitive and difficult negotiations with a foreign government and wants to see the history of communications and discussions with it by the former president, who also dealt with this same difficult negotiations with a difficult foreign country”.

The hypothetical incumbent, she posited, “wants to see those documents to help inform his ability to be effective in those negotiations. hypothetically hear this all hypothetical wants to use it to help … inform his ability to be effective in his negotiations”.

She then asked: “Is it your position that a former president … hypothetically any former president, could also go to court and ask a court to enjoin the archivist from giving those documents to the incumbent president?”

Mr Clark replied that such a position was the one laid out by the Supreme Court in Nixon v. General Services Administration, a 1977 case which upheld a 1974 law which placed former president Richard Nixon’s White House papers into the custody of the government to prevent him from destroying them after his resignation from office.

But Judge Millett immediately replied that the Nixon case was over an earlier law than the Presidential Records Act, the law Mr Trump claims gives him the ability to block Congress from seeing his administration’s records over Mr Biden’s wishes.

Asked to clarify whether he was arguing that current law would allow a former president to sue to block a successor from using records created during a prior administration for valid executive branch purposes, Mr Clark replied that it was indeed his position, and that the incumbent would have to demonstrate a “compelling need” for the documents, which would have to be kept confidential.

But when pressed further on what circumstances would present the “compelling need” even without a pledge of confidentiality, Mr Clark said he could not think of such a hypothetical situation “off the top of [his] head”.

The third member of the panel, Judge Robert Wilkins, also questioned Mr Clark’s claim that the court needs to conduct a document-by-document review to determine whether a particular document is privileged if a former and incumbent president disagree on the matter.

“There’s nothing in the statute that says that the privilege determination has to be made on a document by document basis,” he said, adding that the federal judge who ruled that Mr Nixon’s White House tapes were not shielded by privilege and could be given to the Senate Watergate committee did not need to review the tapes before doing so.

The judges continued to press Mr Clark on what criteria he believes the court should use when determining whether Mr Biden’s decision to not invoke privilege with respect to documents desired by Congress outweighs Mr Trump’s desire for them to remain secret, and why they should give preference to a former president’s desire for confidentiality over the needs of a current president.

“Why then, would it be that the court should preference the former president’s concerns about confidentiality? Even though he had may have the superior knowledge of what the documents were about … we’re in a different world today because we have a different president who’s taking into account not only confidentiality, but other things,” Judge Millett said.

“There are considerations such as … a document is going to be an embarrassment to a former president, if it’s meant to cause political turmoil,” he said.