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Judges on a federal appeals court in Washington, D.C., expressed doubts Tuesday about arguments by former President Trump’s lawyers that they should bar the Biden administration from releasing documents from the former president’s term to the House Jan. 6 Committee.
But the judges also picked apart the committee’s arguments during the high-stakes hearing that touched on executive privilege, the Nixon tapes, federal records law and the deadly attack on the Capitol on Jan. 6 this year.
The three-judge panel with Obama appointees Judges Patricia Millett and Robert Wilkins, and Biden appointee Judge Ketanji Brown Jackson, heard over three hours of oral arguments in the case related to the committee’s investigation into the cause of the attack. President Biden’s administration was working with the committee to provide the Trump-era documents it requested.
President Trump walks across the tarmac to board Air Force One at in Andrews Air Force Base, Maryland, Dec. 12, 2020.
(AP Photo/Andrew Harnik)
Trump sued to block the release of the documents, but a lower-court judge ruled in favor of the committee, saying the former president cannot block the transfer of these documents to the committee. The three appeals judges were also suspicious of the Trump legal team’s position Tuesday.
Millett discussed at length the potential standard with Trump’s lawyer Justin Clark. Clark argued the court must ask whether Congress needs such documents, if they’re available elsewhere, if the documents meet the executive privilege standard, and as a final tiebreaker if the need is so high that executive privilege can be overruled.
But Jackson tore into Clark for seeming to make up a standard where one did not exist in the law.
“I would expect if you were right a provision in the statute that addresses this very situation,” Jackson said. “When the incumbent president says, ‘Executive privilege is waived, I’m allowing these documents to go out,’ and the former president says, ‘No, no, I have executive privilege and I’m asserting it,’ then the former president gets to come to court and… the court will decide – and here are the standards.”
Jackson added: “That’s what Judge Millett was trying to get at. None of that is in the statute.”
Clark rebutted that, citing a law that says “if the incumbent president does not uphold the claim asserted by the former president” the archivist will release the documents “unless a court order in an action in any federal court directs the archivist to withhold the record, including an action initiated by the former president.”
President Trump speaks to supporters from The Ellipse near the White House on Jan. 6, 2021, in Washington, D.C.
(BRENDAN SMIALOWSKI/AFP via Getty Images)
Wilkins also said he saw some law that “anticipate[s] that the former president can bring an action like the one you’ve brought here.” But Wilkins appeared to disagree with Clark on whether the court needed to review documents on a case-by-case basis.
Brown, meanwhile, said the standard by which Trump’s legal team was asking them to decide the case was unclear.
“There’s no deference given to the current president because he’s current?” Brown asked, sounding suspicious of such an idea. Clark replied that he believes that’s the case.
“The Supreme Court in Nixon v. GSA was explicit that when it comes to evaluating the interests of the executive branch, when that call is made by the incumbent president… the interests asserted by the former president is diminished,” Millett said. “Counts for something.”
“We have one president at a time under our constitution,” Millett said. “What happens then? You lose.”
But the three judges also sparred Douglas Letter, the general counsel for the House of Representatives, and seemed to poke holes in the Jan. 6 committee’s argument that Trump has virtually no control over documents from his presidency.
Supporters of President Trump climb the west wall of the U.S. Capitol on Wednesday, Jan. 6, 2021, in Washington.
((AP Photo/Jose Luis Magana))
“You’re saying we don’t do a balancing… we weigh the incumbent more?” Wilkins said. “What if there’s four former presidents that say… ‘These documents should remain privileged, it would be terrible, would destroy the office of the executive to waive privilege.’ But the incumbent says, ‘No, I think the privilege should be waived.’ Four former presidents, does that equal one former president? We don’t do a weighing?”
“That’s easy,” Letter replied. “The incumbent obviously wins.”
Wilkins said it seemed Letter was arguing only one party should be able to win a case like this.
“You’re saying that the court can overrule the incumbent president to give Congress documents, but the court can’t overrule the incumbent president to say that Congress can’t get documents? You want a one-way ratchet?” Wilkins said.
“It would be astonishing for this court to overrule the current president and Congress,” Letter replied.
Millett added: “If we have a constitutional scheme in which that privilege turns off at 10:01 p.m. Jan. 20, it won’t be a real privilege at all… God bless the president who tries to get confidential advice on something imperative on Jan. 19 because everyone will know, well, tomorrow it’s coming out.”
Fox News’ Bill Mears contributed to this report.
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