Appeals court weighs Trump arguments to withhold records

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.

Former U.S. President Donald Trump speaks during a rally protesting the Electoral College certification of Joe Biden as President in Washington on Jan. 6, 2021. [File Photo: AP/Evan Vucci]

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 Joe Biden waived executive privilege.

Trump supporters broke into the Capitol on Jan. 6 after a rally near the White House where he made false claims of election fraud and challenged them to “fight like hell." About 700 people have been federally charged. Nine people died during and after the rioting.

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 to 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.”

“We're not going to make it that easy,” she said.

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.

Democratic presidents nominated all three judges who heard arguments Tuesday. Millett and Judge Robert Wilkins were nominated by former President Barack Obama. Judge Ketanji Brown Jackson is a Biden appointee seen as a contender for a Supreme Court seat should one open during the current administration.