Court wrestles with release of Jan. 6 info
WASHINGTON — A panel of judges on Tuesday questioned whether they had the authority to grant former President Donald Trump’s demands and stop the White House from allowing the release of documents related to the Jan. 6 insurrection led by Trump’s supporters.
But the judges also noted that there may be times when a former president would be justified in trying to stop the incumbent from disclosing records.
The U.S. Court of Appeals for the District of Columbia Circuit heard arguments from lawyers for Trump and the House committee seeking the records as part of its investigation into the Capitol riot. Trump’s attorneys want the court to reverse a federal judge’s ruling allowing the National Archives and Records Administration to turn over the records after President Biden waived executive privilege.
The National Archives has said that the records Trump wants to block include presidential diaries, visitor logs, speech drafts, handwritten notes “concerning the events of January 6 from the files of former chief of staff Mark Meadows, and “a draft executive order on the topic of election integrity.”
Compared with U.S. District Judge Tanya Chutkan, whose ruling Trump is contesting, the three judges on the appeals court spent relatively little time weighing the importance of the documents themselves. They instead focused most of the hearing Tuesday on what role federal courts should have when an incumbent president and former president are at odds over records from the former’s administration.
The judges sharply questioned both sides and challenged them with hypothetical scenarios.
To Trump’s lawyers, Judge Patricia Millett suggested a situation where a current president negotiating with a foreign leader needed to know what promises a former president had made to that leader. The incumbent might seek to release a transcript of a phone call or other records from the previous administration for national security reasons, the judge said.
“To be clear, your position is a former president could come in and file a lawsuit?” Millett said. Trump lawyer Justin Clark responded, “That is our position.”
To a lawyer for the House committee, Millett raised a scenario where a newly elected president might seek retribution against a disliked predecessor. The new president and a Congress led by the same party might declare that there was a national security interest in releasing all of the former president’s records, even at the risk of endangering people’s lives, she said.
“Needless to say, the former president comes to court, [says], ‘Hang on,’ ” Millett said. “What happens?”
She did not say she was referring to any president and rejected committee lawyer Douglas Letter’s response referencing a president who “fomented an insurrection.”
Letter argued the determination of a current president should outweigh predecessors in almost all circumstances and noted that both Biden and Congress were in agreement that the Jan. 6 records should be turned over.
“It would be astonishing for this court to override the current president and Congress,” Letter said.
Given the stakes of the case, either side is likely to appeal to the Supreme Court.
In explaining why Biden has not shielded Trump’s records, White House counsel Dana Remus has written that they could “shed light on events within the White House on and about Jan. 6 and bear on the Select Committee’s need to understand the facts underlying the most serious attack on the operations of the federal government since the Civil War.”