Judges question Trump lawyers’ claims in big case Jan. 6 Committee documents: ‘One president at a time’

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Judges at the federal appeals court in Washington, DC, expressed doubts Tuesday about arguments by former President Trump’s lawyers that they should prevent the Biden administration from releasing documents from the former president’s term on the Committee. of the House January 6.

But judges also picked up committee arguments during the high-stakes hearing that touched on executive privilege, the Nixon tapes, federal records law and the deadly attack on the Capitol on Jan. 6 this year.

The three -judge panel including Obama -nominated Judges Patricia Millett and Robert Wilkins, and Biden -nominated Judge Ketanji Brown Jackson, heard more than three hours of oral argument in the case related to the committee’s investigation into the cause. of attack. President Biden’s administration is working with the committee to provide the Trump -era documents it requested.

President Trump walks the tarmac to board Air Force One at Andrews Air Force Base, Maryland, Dec. 12, 2020. (AP Photo/Andrew Harnik)

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Trump sued to block the release of the documents, but a lower court judge ruled in favor of the committee, saying the former president could not block the transfer of these documents to the committee. The three appeals judges were also suspicious of the position of Trump’s legal team on Tuesday.

Millett has long discussed the potential standard with Trump’s attorney Justin Clark. Clark argued that the court should ask whether Congress needs such documents, whether they are available elsewhere, whether the documents meet the standard of executive privilege, and as a final tiebreaker if demand is too high. the executive privilege may be revoked.

But Jackson tore Clark up for seemingly making a standard where no one is in the law.

“I’m looking forward to whether a provision in the law that addresses this very situation is correct,” Jackson said. “When the incumbent president said, ‘Executive privilege has been waived, I allow these documents to come out,’ and the former president said, ‘No, no, I have executive privilege and I insisted on it,’ then the former president will go to court and… the court will decide – and here are the criteria. “

Jackson added: “That’s what Judge Millett is trying to get. None of that is in the law.”

Clark denied that, citing a law that says “if the incumbent president does not uphold the claim the former president asserted” the archivist will release documents “unless a court orders an action in any federal that court ordered the archivist to keep the record, including an action initiated by the former president. “

President Trump spoke with supporters from The Ellipse near the White House in January. 6, 2021, in Washington, DC (BRENDAN SMIALOWSKI/AFP via Getty Images)

Wilkins also said he saw some legislation “waiting[s] that the former president can take action like you brought here. ”But Wilkins appears to disagree with Clark on whether the court needs to review the documents on a case-by-case basis.

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Meanwhile, Brown said the criteria by which Trump’s legal team asks them to decide the case is unclear.

“No respect given to the current president because he is current?” Brown asked seemingly suspicious of such an idea. Clark replied that he believed that was the case.

“The Supreme Court in Nixon v. GSA is explicit that when it comes to evaluating the interests of the executive branch, when that call is made by the current president … the interests asserted by the former president are diminished,” Millett said. . “Counting for something.”

“We have one president at a time under our constitution,” Millett said. “What happens then? You lose.”

But the three judges also sparred with Douglas Letter, the general counsel for the House of Representatives, and apparently pierced the committee’s argument on Jan. 6 that Trump had virtually no control over documents from his presidency.

Supporters of President Trump climbed the west wall of the U.S. Capitol on Wednesday, Jan. 6, 2021, in Washington. ((AP Photo/Jose Luis Magana))

“You’re saying we don’t do balancing … we weigh the incumbent more?” said Wilkins. “What if four former presidents would say … ‘These documents should remain privileged, it would be terrible, would destroy the office of the executive to waive privilege.’ But the incumbent said, ‘No, I think the privilege should be revoked.’ Four former presidents, is that the equivalent of a former president? We don’t weigh in? “

“That’s easy,” Letter replied. “The incumbent obviously wins.”

Wilkins said it seems like Letter is arguing that only one party should win in a case like this.

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“You say the court can overrule the incumbent president to provide documents to Congress, but the court can’t overrule the current president for saying that Congress can’t get documents? You want a one-way ratchet? ” said Wilkins.

“It would be wonderful for this court to overrule the current president and Congress,” Letter replied.

Millett added: “If we had a constitutional procedure where that privilege was turned off at 10:01 pm Jan. 20, it wouldn’t be a real privilege … God bless the president who is trying to get confidential advice on something that is needed on Jan. 19 because everyone will know, it will come out tomorrow. “

Fox News ’Bill Mears contributed to this report.

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