WASHINGTON (CN) — A three-judge panel appeared ready, during a nearly-four-hour hearing at the D.C. Circuit on Tuesday, to reject attempts by former President Donald Trump to withhold nearly 800 pages of documents regarding the Capitol riot from the Jan. 6 select committee.
Earlier this month, a federal judge in Washington rejected Trump’s request to block the National Archives from handing documents over to the House committee investigating the Jan. 6 insurrection, calling it a “matter of public interest” for the records to be exposed.
U.S. District Judge Tanya Chutkan said that she disagreed with Trump’s claim that. even out of office, he has executive privilege — or a right to shield certain documents from the public’s view — saying President Joe Biden is best positioned to evaluate the interests of the executive branch.
“Presidents are not kings and plaintiff is not president,” Chutkan wrote in her 39-page-opinion.
Trump appealed and faced a tough panel of three Democratic appointees on Tuesday, who expressed concerns that a former president could intervene in negotiations between the current president and Congress — as Biden has declined to claim executive privilege for the documents.
“Why should the former president be the one to make that determination, especially when it involves another branch of government?” asked U.S. Circuit Judge Ketanji Brown Jackson, a Biden appointee. “The incumbent president will know better the needs of the executive branch with respect to accommodation of the legislature. We’re in a different world today because we have a different president who’s taking into account not only confidentiality but other things.”
The main issue in this case is whether Trump has the authority to block the National Archives from turning over the documents to the House. And though the Supreme Court has ruled that former presidents do have some sort of executive privilege over their old records, it’s unclear if they can override a sitting president’s decision.
The 1977 Supreme Court ruling found that former President Richard Nixon still had some control over his White House tapes and documents, spurring the Presidential Records Act, which governs how White House records are handled after a president leaves office. Jackson noted, however, that the law doesn’t tell the courts how to handle lawsuits like these.
"We have one president, that one president is in charge of the executive branch, that one president has done the balancing," said Douglas Letter, the House’s general counsel. “It would be astonishing for this court to override the current president and Congress.”
Trump’s lawyers insisted, however, that Trump has a better grasp than Biden does on the context surrounding these documents, and that upholding Chutkan’s ruling would create a slippery slope in justifying access to private presidential records,
“The former president's going to have to come back with some interest, something that's missed in that calculation, some supervening interest, and it won't be enough to go, 'See, I told you it was an executive privilege document,’” said U.S. Circuit Judge Patricia Millett, an Obama appointee. “You're going to have to come up with something more powerful that's going to outweigh the incumbent president's decision to waive executive privilege.”
Millett and Brown were joined by U.S. Circuit Judge Robert Wilkins, an Obama appointee.
The ruling could come within days, as the case is on a fast track through the courts.
Read the Top 8
Sign up for the Top 8, a roundup of the day's top stories delivered directly to your inbox Monday through Friday.