U.S. appeals court judges on Tuesday signaled skepticism toward former President Donald Trump‘s bid to keep records about his conversations and actions before and during the deadly Jan. 6 Capitol riot by a mob of his supporters away from congressional investigators.
A three-judge panel of the U.S. Court of Appeals for the District of Columbia Circuit heard an oral argument, still ongoing, in Trump’s appeal of a judge’s decision that the records should be turned over to a congressional committee.
Judge Ketanji Brown Jackson questioned why Trump should be able to challenge and overrule President Joe Biden’s determination that the records should be handed over.
“Is there a circumstance where the former president ever gets to make this sort of call?” asked Jackson, seen as a possible future Supreme Court nominee for Biden.
Clark argued that a 1978 law called the Presidential Records Act gives Trump that power.
“I don’t see that in the statute,” Jackson responded.
The House of Representatives select committee investigating the riot has asked the National Archives, the U.S. agency housing Trump’s White House records, to produce visitor logs, phone records and written communications between his advisers. The panel has said it needs the records to understand any role Trump may have played in fomenting the violence.
Judge Patricia Millett also asked why a former president’s determination should overrule one by the current president.
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“We only have one president at a time under our Constitution,” Millett said.
The three judges also pressed Trump’s lawyers Jesse Binnall and Justin Clark over whether courts even have jurisdiction to hear the former president’s claims.
“All three branches of government have acknowledged there is a right of former presidents to challenge the designation and release of presidential records,” Binnall responded.
Trump sued the committee and the National Archives to try to prevent the release. In court filings, Trump’s lawyers called the Democratic-led investigation politically motivated, and argued that the documents sought by the committee are protected by executive privilege, a legal doctrine that allows presidents to keep private some of their conversations with advisers.
During Tuesday’s hearing, Judge Robert Wilkins said that Trump is not entitled to the type of document-by-document review he has requested before any of the records are released.
“It seems to me that your argument is inconsistent with our precedent,” Wilkins told Clark.
Trump supporters stormed the Capitol in a bid to prevent Congress from formally certifying his 2020 presidential election loss to Biden. Shortly before the riot, Trump gave a speech to his supporters repeating his false claims that the election was stolen from him through widespread voting fraud and urging them to go to the Capitol and “fight like hell” to “stop the steal.”
U.S. District Judge Tanya Chutkan on Nov. 9 rejected Trump’s arguments, saying the Republican former president had not acknowledged the “deference owed” to Biden’s determination as president that the House committee could access the materials.
“While broad, these requests, and each of the other requests made by the Committee, do not exceed the Committee’s legislative powers,” Chutkan said in her decision. “Presidents are not kings, and Plaintiff is not President.”
The D.C. Circuit put off allowing the committee to access the records while it considers the matter. The three judges randomly assigned to the case were appointed to the judiciary by either Biden or former President Barack Obama, both Democrats.
If Trump loses at the D.C. Circuit, he could take the matter to the U.S. Supreme Court. Trump’s former chief strategist Steve Bannon already has been charged with two counts of contempt of Congress for defying the committee, pleading not guilty.
(Reporting by Jan Wolfe; Editing by Will Dunham and Scott Malone)