Millett and fellow judges Robert Wilkins and Ketanji Brown Jackson — all Democratic appointees to the appeals court — underscored deep concerns about allowing a former president to intervene in delicate negotiations between the sitting president and Congress. Their ruling, which could come within days, could determine whether the House Jan. 6 select committee gains access to a massive trove of Trump’s White House records that shed light on his efforts to subvert the 2020 election and stop Congress from certifying Biden’s victory.
The files at issue are drawn from former Chief of Staff Mark Meadows, former adviser Stephen Miller, former deputy White House Counsel Patrick Philbin and former Press Secretary Kayleigh McEnany, among other top Trump aides. The National Archives has identified the documents in periodic batches since early September and expects to produce additional tranches in the coming months.
Trump has made at least four assertions of executive privilege, most recently on Nov. 15, in a bid to prevent portions of those records from going to House investigators. He has tried to assert executive privilege over at least 750 sensitive pages. Those documents include daily presidential diaries, schedules, appointment information, drafts of speeches, correspondence, handwritten notes, call logs, talking points, memoranda and email chains, according to the National Archives.
Pressed by Millett, Trump attorney Justin Clark declined to say precisely what standard a judge should apply if he or she was confronted with the ultimate question of whether a former president or current president should win out over the release of a specific document.
“Calling balls and strikes on kind of ethics, non-legal ethics things are not my bailiwick,” Clark said.
Millett also complained that Trump himself has not gone on the record to explain why the specific documents at issue are so sensitive that they should be withheld.
“We have no declarations. We have no particularization,” Millett said. “The court itself is supposed to go through and make arguments that the former president hasn’t?”
Clark said Trump’s specific objections could be detailed at a later stage of the litigation, if the courts block immediate disclosure. But the attorney warned that going into too much detail would reveal the substance of the documents. “There will be a line where you can’t go over, then the documents are just kind of out in public in terms of what they are,” Clark said.
Jackson noted that while a current president has to balance the impact of angering Congress against the potential impact on the operations of the executive branch, a former president doesn’t have to worry about that impact.
“That’s a pretty weighty concern … and it’s a concern that is not on the table necessarily with respect to the former president,” she said. “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.”
Wilkins said that Trump’s attorneys seemed to be advocating for a test that would give the former president’s objection as much weight as it would have had when he was president. That neglects the significance of Biden’s decision to allow the records to go to the Congress.
It’s “as if the incumbent president’s determination to waive privilege like didn’t happen at all, is irrelevant doesn’t matter,” Wilkins said skeptically.
Not all the comments by the judges were dismissive of Trump’s position. While Millett complained about the lack of detail the former president has offered to support his privilege claim, she said he deserved credit for agreeing that many of the records the House sought could be sent to them.
“I think it is to the credit of former President Trump that he has been discerning in going through these documents … and hasn’t made a sort of global assertion of privilege,” she said.
While Jackson sounded skeptical about any role for judges in the document fight, Millett seemed to agree with Trump’s lawyers that the Presidential Records Act passed in 1978 seems to anticipate a right for former presidents to take such fights to court and have their objections heard out.
“It can’t be that we all go to court and we go, ‘Incumbent president wins. Thank you for playing,’” she said.
Revealing the pages, Trump’s attorneys argue, would erode the ability of all future presidents to protect the sanctity of private discussions with aides and expose them to “harassment” by opposition-party Congresses.
“Every Congress will point to some unprecedented thing about ‘this president’ to justify a request for his presidential records,” Clark and fellow Trump lawyer Jesse Binnall wrote in a brief filed with the appeals court last week.
A district court judge has already rejected that argument.
Although the Supreme Court has ruled that former presidents retain a degree of control over their old records, there is no clear legal precedent granting them power to override the sitting president’s decision to release them to Congress.
Biden, in the current dispute, has declined to assert executive privilege over the hundreds of pages in question, save for a small number of documents the House agreed not to seek for the time being. U.S. District Court Judge Tanya Chutkan determined that overruling the current president at a former president’s behest would upset the balance of power between the executive and legislative branches.
“Presidents are not kings and plaintiff is not president,” wrote Chutkan, an appointee of former President Barack Obama.
Chutkan ruled that only the sitting president is suited to determine how to protect the institution and that a former president’s interest in his own documents can’t override the incumbent. That’s especially true in a case when Congress and the sitting president are in agreement, a rarity in modern disputes over access to documents, she wrote.
If the panel agrees with Chutkan’s decision, it could deal a fatal blow to Trump’s push to maintain the secrecy of his pre-Jan. 6 maneuvers. Though he would likely appeal to the full bench of the appeals court or to the Supreme Court, a ruling against him is bound to spark an urgent race by the committee to obtain the documents and fight any efforts to stay the ruling during an appeal.
The most memorable executive privilege fight involving a former president in the modern era involved Richard Nixon’s efforts to maintain control over his White House records in the wake of his resignation due to the Watergate scandal. The Supreme Court ruled that Nixon, as a former president, still retained a degree of control over his White House’s tapes and documents, but the high court’s decision didn’t flesh out the details.
That ruling helped prompt Congress to pass the Presidential Records Act, which governs the handling of White House documents after presidents leave office. While Trump’s attorneys predict catastrophe if Congress gets access to his White House records, under that federal law passed in 1978, most White House records of former presidents become eligible for release to the public 12 years after the president in question leaves office.
Until that time, the law permits former presidents to request that the sitting president — in this case Biden — assert executive privilege on their behalf to block release. If the incumbent refuses, the former president may seek a court order blocking the release of his documents. But in the four decades since, no sitting president has ever disagreed with a former president’s assertion of privilege, meaning the issue has never been litigated until now.
Justice Department lawyers arguing on behalf of the National Archives have forcefully backed the House’s position, noting that presidents on numerous occasions have willingly waived executive privilege to support investigations of national significance.
That includes Nixon in 1973 permitting aides to testify to Watergate investigators, Reagan authorizing testimony in the Iran-Contra affair and Trump himself declining to block former FBI Director James Comey’s testimony to Congress or the release of special counsel Robert Mueller’s report.