Thread by @KlasfeldReports

A hearing is scheduled to begin shortly in Trump's lawsuit trying to block the National Archives from complying with the @January6thCmte's subpoenas.

I'll be covering the proceedings for @LawCrimeNews.

The public dial-in information for presiding Judge Chutkan's court is publicly listed:

Toll Free Number: 866-590-5055
Access Code: 3850112

Court is now in session.

The parties introduce themselves:

Justin R. Clark and Jesse Binnall for Trump.
Douglas Letter for House of Representatives.
Elizabeth J. Shapiro for DOJ / Archivist.

Letter says both defendants will argue.

Shapiro will go first.

For Trump, Clark will be handling arguments, rather than Binnall.

Clark calls this a "monumental case" in executive privilege, which he calls a "case of first impression for this court."

"It's not just an important argument and a monumental argument," which will have consequences for "generations."

Judge: "Thank you for reminding me of that."

Brief recess to resolve issues for the court reporter.

Chutkan, on tech difficulties: "I am so looking forward to the end of Zoom hearings."

Trump's lawyer mentions the Supreme Court's Mazars precedent.

Judge Chutkan notes that Trump was a sitting president.

When he was no longer sitting president, a district court applied a "Mazars-lite," she notes.

Judge Chutkan: "That privilege has been waived by the current president."

Judge Chutkan: "How do I square that with the fact that Congress here has not requested private information?"

The Mazars case involved Trump's private financial records, whereas this case only involves "government activity," the judge notes.

Judge Chutkan scoffs at Trump's lawyer's arguments that the records don't have legislative purpose: "The Jan. 6 riots happened in the Capitol. That is literally Congress's house."

Judge: "Isn't it appropriate that Congress may not know what legislation or how much legislation is required until they complete their fact-finding process?"

Judge Chutkin says she "agrees" that the Committee cast a wide net in some instances.

"Some of these requests are alarmingly broad, but some of them are very specific."

Clark: "Here, the requests are unbelievably broad," and they don't match up with any legislative purpose.

Judge Chutkan: "The sitting president has waived privilege and agreed that" the documents can be turned over.

She asks whether the person best place to determine privilege is the "executive."

Judge Chutkan grills Clark over the Nixon precedent.

Judge: "Mr. Clark, I'm going to ask you to dial down the rhetoric," telling him she would hardly describe the sought-after files as a "document dump."

Judge Chutkan, on Trump's request: "Wouldn't that be an intrusion by this branch into the executive and legislative branch's function?"

Chutkan: "I don't disagree that once the information is out, you can't unring the bell."

However, Chutkan asks: "Where's the harm?"

These aren't banking records. These are documents "quintessentially" about government business, she says.

"Are we not?" she asks.

Q: "Where's the harm? Tell me the harm. [...] Where's the harm that would accrue to the plaintiff if" the documents were made public.

Clark says the harm would go to the "institution to the presidency"

Chutkin: The current president disagrees.

Chutkan asks how Trump is harmed by the release of White House visitor logs.

He says he needs to look at the documents to determine that.

Clark: "I can talk to you about the harm to the institution."

Judge Chutkan is really drilling down here on Trump's lawyer's inability to articulate specific harm by the release of the documents.

Clark said the subpoena "blows a hole" in executive privilege that should concern the public.

Chutkan: Isn't your assertion of privilege here just as broad [as the requests]?

DOJ lawyer Shapiro is now up for the defendants.

Judge: "What is the appropriate test here? [...] And what is the limiting principle on your test?"

Nixon v. GSA supreme.justia.com/cases/federal/…

Shapiro says there's another reason this is "not a particularly difficult case": "Presidential communications privilege is a qualified privilege."

Shapiro: "These are not documents where privilege and confidentiality will survive forever; far from it."

Shapiro adds it's not unusual for presidents not to assert privilege over a predecessor's information.

Shapiro: "This very same former president has permitted it to happen."

As for the White House visitor logs, Shapiro notes that these have been routinely released by other presidents.

Douglas Letter is now up for the House of Representatives, calling the @January6thCmte's probe "one of the most important congressional investigations in the history of our nation that has ever occurred."

Interrupting, Judge Chutkan said she has no dispute about that characterization. She nonetheless presses him on requests that she calls "unbelievable broad."

—Such as requests for polling data & all communications with 40 individuals dating back months.

Q: Can you justify them?

Letter agrees that they're broad, before adding that the committee is looking into a number of factors.

"We need to figure out what was the atmosphere that brought this about."

He says that means they need to go back to attempts to undermine democracy before the election.

Letter: "That is exactly what the committee has to look into, or is looking into, because otherwise, we would have a very narrow focus."

He invokes George Santayana's observation that those who do not learn from the past are doomed to repeat it.

Judge Chutkan says she understands the argument that Trump was "priming the pump in case he lost," but she asks, why seek docs from April 2020?

Judge: There has to be some limit, don't you agree?
Letter: Yes, your honor.
Judge: Where is the line drawn?

Letter says it's not up to Trump to determine the privilege. It's up to the current president: Biden.

Even if an aspect is overbroad, he notes, the entire subpoena would fall.

Chutkan: What balancing test is appropriate in weighing a disagreement between a former president and a current president over whether a privilege exists?

Letter: It's already been done. [By Biden]

Chutkan: Is that where I end?

After some preliminaries, Letter answers: Yes.

Letter: I'm saying that there would never be any judicial review under the statute.

But there's nothing necessary in this case, he adds.

Chutkan asks for the relevance of 2020 polling data.

Chutkan: “Do you need polling data to determine that a former president up for re-election wants to win?”

Letter says that the polling data won't only show whether he's likely to win but who's likely voting for him, people to target for his attack on the election.

Invoking Watergate, Judge Chutkan asks if this is an inquiry about "What did the president know, and when did he know it?"

Letter responds "absolutely."

Letter says time is of the essence: "We strongly request that you act with dispatch here."

Chutkan to Trump's lawyer: "The current president has declined to assert privilege."

What principle does she apply when a former president does?

"They're not equal," Chutkan notes.

Judge Chutkan: "I will issue my opinion and ruling expeditiously."

Adjourned. Story soon, @lawcrimenews

ICYMI, my story on today's proceedings.

https://twitter.com/KlasfeldReports/status/1456305468830269452?s=20