Federal appeals judges appeared skeptical Tuesday of former President Donald Trump's claim that executive privilege should prevent the House Jan. 6 committee from getting scores of documents created when he was in the White House.
After more than three hours of courtroom argument, a panel of three judges of the U.S. Circuit Court of Appeals for the District of Columbia seemed prepared to rule that although Trump retains some residual authority to claim executive privilege, it is not strong enough to overcome President Joe Biden's decision that Congress needs the material, given the severity of the riot at the Capitol.
After the committee sought a raft of records from the National Archives, which maintains all documents from past administrations, Trump asserted executive privilege over more than 700 pages. But Biden said the material should be released to Congress, citing the importance of the committee's work.
Trump then sued to block the release. He said the committee had no proper legislative purpose for seeking the records and that it instead launched the investigation to intimidate and harass him and his closest advisers under the guise of investigating the Capitol riot.
U.S. District Judge Tanya Chutkan ordered the National Archives to hand the material over, but the appeals court granted a brief stay and set a fast-track schedule to submit legal briefs.
A major question is how much authority a former president has to assert executive privilege. A 1977 Supreme Court ruling in a dispute between former President Richard Nixon and the National Archives said former presidents retain some ability to assert the privilege. But the decision said the current president is in the best position to evaluate when such claims should be honored.
Trump's lawyers said Chutkan wrongly concluded that a sitting president has the sole power to decide when a claim of executive privilege should be honored. That view would gut the foundation of executive privilege and discourage a president's close advisers from giving candid advice in the future, one of the attorneys, Jesse Binnall, argued.
Another lawyer for Trump, Justin Clark, said there should be a role for the courts to step in when a current president seeks to release documents to embarrass his predecessor for strictly political reasons.
But Judge Ketanji Brown Jackson asked in what other circumstance would a former president have the final say about the interactions of the branches of the government.
"Why should the former president be the one to make that determination?" she asked.
Judge Patricia Millett questioned why a former president's views should prevail if, for example, a current president decides it is in the national interest to release a sensitive document from a past administration dealing with a foreign government.
"Your position is that a former president could come in and file a lawsuit, and it would be up to the courts to prevail?" she asked a lawyer for Trump.
Jackson also asked whether Trump's ability to go to court might be limited solely to making sure that the archivist gives him an opportunity to say which documents he wants withheld. Once Biden decided to waive the privilege, Trump's legal options would be at an end, she suggested.
The judges also wondered what authority they would have to second-guess the incumbent president about when claims of executive privilege should be waived.
Lawyers for the House said in written submissions that the committee needs the records "to complete a thorough investigation into how the actions of the former president, his advisers, and other government officials may have contributed to the attack on Congress to impede the peaceful transfer of presidential power."
The appeals panel is likely to issue its ruling quickly because it heard the case on a fast track. Whichever side loses can go to the full D.C. appeals court or directly to the Supreme Court.