The Washington Post

Court examines bid to shield records

Trump and Biden spar in case testing limits of executive privilege

- BY SPENCER S. HSU AND ANN E. MARIMOW spencer.hsu@washpost.com ann.marimow@washpost.com

A federal appeals court on Tuesday scrutinize­d former president Donald Trump’s effort to keep White House documents secret from a congressio­nal committee investigat­ing the Jan. 6 attack on the Capitol.

A three-judge panel of the U.S. Court of Appeals for the D.C. Circuit expressed skepticism about the role of the courts in settling a dispute in which a former president and the sitting president are at loggerhead­s over the release of White House records.

“Who decides when it’s in the best interest of the United States to disclose presidenti­al records? Is it the current occupant of the White House or the former?” Judge Ketanji Brown Jackson pressed Trump’s attorney.

When else in history has a former president had the “final say,” Jackson asked.

Judge Patricia A. Millett noted that past Supreme Court decisions give more deference to the determinat­ions of the sitting president.

“We have one president at a time under our Constituti­on,” Millett said.

But she also expressed concern that future presidents could be hobbled if the confidenti­ality of their deliberati­ons were to expire the minute they leave office. Facing a first-of-its-kind dispute between Trump and President Biden, she and the other judges struggled to come up with what rules to apply.

“Whatever the incumbent president says, goes?” Judge Robert Wilkins asked the lawyer for House Speaker Nancy Pelosi (DCalif.). “We don’t just flip a coin.”

The judges did not say how or when they would rule after a 3.5-hour hearing that probed the limits of the separation of powers, Supreme Court precedent over the ownership of presidenti­al records and a statute governing their release. However the D.C. Circuit rules, the Supreme Court will probably be asked to intervene.

The House investigat­ive committee in August requested Trump’s official communicat­ions and activities leading up to lawmakers’ confirmati­on of the electoral college results the day a riot by Trump supporters — angered by his unfounded claims that the 2020 election was stolen — forced the evacuation of the Capitol.

Trump sued, demanding that hundreds of pages of his White House call and visitor logs, emails, draft speeches and notes be kept secret. He argued he had residual rights to executive privilege as former president even though Biden agreed to the release of the material.

Trump’s attorneys are asking the appeals court to block release of the documents and to reverse a lower-court ruling against him. Attorney Justin R. Clark said that former presidents retain the right to object and that such disputes should be settled in court.

Trump’s lawyers have accused congressio­nal Democrats of launching the probe to intimidate and harass him and his closest advisers in an effort untethered to any “valid legislativ­e purpose.”

“The stakes in this case are high. . . . It is naive to assume that the fallout will be limited to President Trump or the events of January 6, 2021,” Trump attorneys Jesse R. Binnall and Clark wrote.

“Every Congress will point to some unpreceden­ted thing about ‘ this President’ to justify a request for his presidenti­al records. In these hyperparti­san times, Congress will increasing­ly and inevitably use this new weapon to perpetuall­y harass its political rival,” Trump’s attorneys argued.

The appeals court is reviewing the decision of U.S. District Judge Tanya S. Chutkan of D.C., who rejected Trump’s claims in a withering ruling Nov. 9, saying the material should be released.

“Presidents are not kings, and Plaintiff is not President,” Chutkan wrote, ruling that an ex-president’s residual right to withhold records from Congress after leaving office does not continue in perpetuity.

Chutkan noted that former presidents waived executive privilege when dealing with matters of “grave national importance,” including the Watergate break-in of Democratic National Headquarte­rs by Richard M. Nixon’s 1972 reelection campaign, the arms-for-hostages Iran-contra affair under Ronald Reagan, and the 9/11 terrorist attacks during George W. Bush’s presidency.

The D.C. Circuit blocked the imminent release of records and fast-tracked oral arguments.

All three appellate judges said Tuesday that Trump had failed to show what specific harm would come to him personally from the release of the initial set of documents Congress requested.

Clark replied that the harm is the “constituti­onal harm to the executive” and that the court should block release of the records and at least conduct a document-by-document review balancing the sensitivit­y of release and the public interest.

But in court filings, House General Counsel Douglas N. Letter called Trump’s claims “unpreceden­ted and deeply flawed,” saying the ex-president is asking the courts to impede the work of Congress on a “pressing” public matter even when both the executive and legislativ­e branches agree that the records should be disclosed.

“It would be astonishin­g for this court to override the current president and Congress,” Letter argued Tuesday. “These are key documents Congress should have and they should have them right now.”

Acting Assistant Attorney General Brian M. Boynton, representi­ng the National Archives, said in court filings that Trump sought to whitewash the circumstan­ces of the Jan. 6 attack and to recast a violent threat to the peaceful transfer of power as a gardenvari­ety political dispute, ignoring Biden’s determinat­ion that the extraordin­ary event required a full public accounting.

In response to questions Tuesday, Boynton assured Millett that the administra­tion is not just “willy-nilly” disclosing privileged informatio­n. “The circumstan­ces in this case are extraordin­ary, involving an attack on the Capitol,” Boynton said.

Boynton argued that courts should not second-guess a president’s decision to release documents over a predecesso­r’s objections, and that any review be “highly deferentia­l” to the sitting president, who the Supreme Court has found is best positioned to defend the interests of the executive branch.

Jackson expressed reluctance at any attempt by a former president “to conscript the court” to resolve a fight with a successor over executive privilege. Millett seemed to agree to a point, such as in an urgent dispute involving a matter of national security or foreign affairs.

Neverthele­ss, Millett said Supreme Court precedent and congressio­nally approved statutes allow former presidents to challenge such determinat­ions in court, and that a sitting president’s authority is not unlimited.

 ?? JABIN BOTSFORD/THE WASHINGTON POST ?? Reps. Liz Cheney (R-wyo.), Adam Kinzinger (R-ill.) and Jamie B. Raskin (D-MD.) participat­e in the House probe of the Capitol riot.
JABIN BOTSFORD/THE WASHINGTON POST Reps. Liz Cheney (R-wyo.), Adam Kinzinger (R-ill.) and Jamie B. Raskin (D-MD.) participat­e in the House probe of the Capitol riot.

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