Thread by @Brandi_Buchman

Good morning. Trump is in court today to argue his executive privilege claims over records sought by the @January6thCmte.
Live stream starts here at 930AM ET: c-span.org/video/?516121-…
I will have coverage for @dailykos.

https://twitter.com/Brandi_Buchman/status/1465434815830835206

Trump wants to hide call logs, speech drafts, diaries, email, calendars and schedules, memos, and more from the @January6thCmte. Oral arguments kick off at 9:30AM ET. In the meantime:
dailykos.com/stories/2021/1…

Live stream link available here as well:

Arguments should be underway shortly.

Away we go. Jesse Binnall, arguing on behalf of Trump, starts with Presidential Records Act and limits he argues it places on parties seeking access to records. law.cornell.edu/uscode/text/44…

Judge Wilkins asks, bottom line, does Binnall agree that the statutory language in PRA limits subject matter jurisdiction?
Binnall says the language in the statute only limits the subject matter jurisdiction of 3rd persons, not for a former president...

(Binnall cont.) to bring an action on behalf of maintaining the confidentiality of exec records.
Binnall getting into the weeds on limits of judicial review.
Judge Millett wants to split his jurisdiction/cause of action arguments for clarity.

Judge Wilkins says Binnall's complaint cited 2204(E)
law.cornell.edu/uscode/text/44…
(e)The USDC DC shall have jurisdiction over any action initiated by the former President asserting that a determination made by the Archivist violates the former President’s rights or privileges.

Wilkins: Let's assume that the only jurisdiction here is one made by a former president that his or her rights or privileges have been violated. Let's suppose that's how we read this statute. Doesn't some of your complaint go beyond making that argument?

Wilkins says he takes Binnall's point but if the court were to conclude that the only basis of jurisdiction is 2204E, and that is the only action that the court has jurisdiction in, is the concern that the archivists violates the former president's rights or privileges?

Wilkins: If we're working within that framework, does any part of your claim for relief fall outside of that framework?
Binnall: No... Even if that was the only brand of subject matter jurisdiction, we would still be able to get the relief we seek...

Binnall: Specifically, the injunction against the Archivist from producing the records at issue.
Judge Millett wants to know exactly what relief Trump is seeking? Is he just trying to prevent release of records or is Binnall saying the request is partisan and overbroad?

Millet: Is Trump saying the court should enjoin the archives from producing anything at all to congress?
Binall says yes, the Archivist should be restricted under Presidential Records Act.

So far, it doesn't seem like Binnall is gaining much traction here with this argument

Trump's attorney Justin Clark is now up.

We're beyond jurisdiction and into merits now. Clark says the merits, at their essence, comes down to whether a doc or record is imbued with/maintains characteristics of privilege when its made or whether those traits are imposed on it later under an inquiry

Judge Millett says she doesn't quite understand what Clark is saying. She thought the merits argument was over the process, not over the documents.

Clark: The idea is that making a determination with respect to privilege is something that has to look at characteristics of the doc when they are created.
Calling balls/strikes on whether a doc is privileged or not is much more of a technical analysis...

(Clark cont.)...than what Archivist/Biden has done here.
He says it's a post-hoc decision instead of looking at doc at the time and making claims over them.

Clark: Former President Trump exerted privilege over a handful of documents that we're talking about here and there are, a majority of documents, are out the door. Congress can have them.

Clark: So creating a determination as to whether or not privilege exists between the two, the former and current president, is what is at stake here.

Millett: The current POTUS has said exec priv a qualified privilege and its not a permanent privilege and it can be waived. He's making the decision that it is appropriate to share these docs w/this cmte given the vital public interest of the US in this investigation.

Millett: Now, clearly, Trump can disagree with that so the issue before is not the content or when you look at them. It is simply what happens when an incumbent president says I'm not going to invoke executive privilege as to these docs with respect to this particular issue.

Judge Jackson is unwinding Justin Clark's argument, asking why is it that the *former* president, over the current president, is allowed to decide the statutory criteria for appropriate legislative requests is satisfied?

Clark says former presidents have rights to make these determinations, then it goes to archivists/incumbent. When there's a disagreement between current and former, it's incumbent upon the courts to decide whether that privilege exists or not, he says.

Judge Millett, in hypothetical, says: Say an incumbent is engaged in negotiations with a foreign gov't and wants to see previous talks between previous pres and that foreign gov't to help inform decisions

Is it Clark's position that a former president could also go to court and ask a court to enjoin the Archivist from giving those documents to the incumbent president?
Clark says this is GSA v. Nixon. (Not exactly)

Millett: So, you're position is if the current POTUS wants to see docs with the executive branch held by the archivist and needs them for pressing national security and foreign relations reasons...

Millett cont.: A former POTUS can put a halt on that and take it into court to prevent the president from having access to the executive branch?
Clark, again, says that GSA v Nixon.
Millett says no its not, that's a different statute, different fight (We'll get into this later)

GSA v Nixon says you get to go to court. The statute says the same. But under Clark's theory, how are courts supposed to resolve the contest between incumbent/former? What standard of review should apply to incumbent's determination & how do we weigh competing claims?

Under Millett's hypothetical provided earlier, Clark says a test should be applied: 1) make a determination if "critical need" is present. 2) Is the doc available elsewhere? 3) Is it a privileged doc and 4) is the need such that a qualified privilege can be invaded?

Clark:One of the factors to determine if qualified privilege can be invaded is confidentiality. Is there a compelling or critical need for info to come out that would override that privilege?

Millett, still under the hypothetical provided earlier, Can privilege be invaded even without confidentiality?
Clark concedes, probably.

We're in weird waters here without much precedent. And it very much sounds like Clark is making the House's argument for them.

Judge Jackson is uncertain on assumption that there really is a cause of action either in GSA v Nixon or in the statute (PRA) for a former pres to restrict the courts in resolving a dispute between him and an incumbent

Jackson: As I read GSA v Nixon, that case was not about the disclosure of records. Whether it be to congress or to public. That case was about whether the former president retained confidentiality interests in records that the statute now says belong to the United States.

Jackson cont: So it was sort of a property thing.
The new statute comes in and says these records don't belong to president, but to the US and he wanted to maintain his interest in those records notwithstanding that they belonged to the US

Jackson: He has such a confidentiality interest even tho the records are in that state. And there's nothing unconstitutional about the statute that makes the records the prop of the US & he still gets to raise it, but its a diminished interest because he's no longer POTUS.

Jackson: But it's really not about what happens when the current POTUS says these records need to be released, either because he wants to use them or if congress is asking for them and there's conflict between the two of them on what happens to the records.

Jackson: In the extent that you find in that case, the right to come to court to dispute the current president's ability to release the records, I don't see that in that case. I also don't nec. see it in the statute.

Jackson: If you look at the 2204(e) under PRA, it says, the former president can initiate, bring an action, asserting determination made by archivists violates former presidents right and privileges, it doesn't say exec privilege, or constitutional privileges...

Jackson (cont.) It says rights and privileges. And one reasonable way to interpret that, is the statute itself gives POTUS lots of rights in this process. You can review the docs, prevent their release before you review them in 30 day period. personal records to be segregated...

(Jackson cont)... by the archivist. So you can say, hey, wait a minute, that's personal & not presidential. That could easily be litigated by the court. I don't think it is nec. the case that that language encompasses the right to the current president's invocation of EP in court

So in short: Clark is arguing GSA Nixon found that a former president has some rights over certain docs & that the Pres. Records Act solidified the right to challenge that as needed. Jackson prodded Clark: If that was the case, then Nixon would have won his case. He lost.

Judge Millett: Trump is only asserting the interest of the exec branch in confidentiality.

Millett says Nixon v GSA found it is the incumbent who carries the most weight, not the former.

Clark defends the position, saying other steps are involved to weighing the priority interest of a former president versus incumbent. One such thing might be congressional interest in the docs.

Clark, to my ear, is struggling to secure his argument here.

A court would need to look at the docs and determine whether or not they will be released, Trump's attorney Justin Clark says.
Millett: But you've made no particularized documents, at all.

Millett: Your thought is that without any guidance from former POTUS, without any insights, declaration, any argument even, from former, the court itself is supposed to go through and make arguments that the former president hasn't as to individual documents. Thats your position?

Clark says he isn't sure he follows.
Millett: What arguments have you or your client made that say an individual document, this one REALLY cannot be disclosed because its about 'x'?
Judge Jackson says he's only entitled to injunction if he has a likelihood of success on merits.

Jackson explains, that means Trump has to make an actual argument as to why these documents should be shrouded under EP.
Jackson; You have not given the court the argument or evidence as to why these documents should be withheld not withstanding the incumbent's determination...

Jackson (cont.)...about what is in best interest of the US. Let me add, what is in best interest of the US, includes not just a look at how confidential documents are...but also, accommodations, which is the way this normally works.

Jackson: What I mean by that, is the incumbent pres. making a decision about whether or not to cooperate with the legislature? And that encompasses, not just how confidential these are and all of those concerns related to confidentiality but also the process of negotiation

Jackson: How we will behave with respect to these docs or others in light of legislative requests and coequal branches of govt in operation?
Thats a pretty weighty concern, I would think, when the executive is making a decision that it should or shouldn't give the records.

Judge Wilkins says, in a hypothetical situation again, congress issues a subpoena to the Archivist and there's 10 doc requests for the former president's records. And the incumbent president goes to congress and says, I'll waive priv. for 2 of 10 as an accommodation but not rest.

Wilkins continues hypothetical: And I'll waive privilege for the 2 of the 10 if you will agree you will accept that and withdraw the other 8 requests so we don't have any court battles and congress says, OK fine, we'll take that deal.

Wilkins cont.: But the former president says, no, shouldn't make that deal. I'm objecting. And I want to claim priv. to even those 2 categories.
Your view is if the incumbent president has reached an accommodation that wouldn't require court involvement...

Wilkins cont: the former POTUS could bring an action and require the court to get involved anyway?
Clark: Yes.
Wilkins goes back to prior Q re: doc by doc review, says Clark's argument is inconsistent with precedent, in Senate Select Cmte v. Nixon

Wilkins: That case approved and reaffirmed the prior en banc decision that said you can make the priv determination writ large against the whole class of documents and say that the need overrides the privilege and therefore, the privilege has to yield and docs have to be produced

Wilkins: But there's a second step.
A FOIA case at SCOTUS found when a president says a particular doc may not be responsive or sensitive or a redaction is needed, then those individual requests can be made, but *you have to prepare a privilege log or index and explain why.*

So, again, Trump never made this priv log. He just cobbled together a blanket request and said executive privilege was broadly under threat.

Judge Millett sounds frustrated.
She is going over the hypothetical again. And assuming that the incumbent is allowed to make final calls over records. Even if Clark argues, well, the former has to review the docs first, Millett says it doesn't matter.

Millett says the onus remains on former president, not the incumbent, to prove that even though the incumbent wants to waive the privilege, it must stay in place.
Jackson reiterates, its on Trump to explain WHY the docs he wants hidden would harm interests of US if released

Jackson says the incumbent has the current relationship with congress and is taking all things into account, not only the confidentiality interests as expressed by the former, but the CURRENT dynamics

Millett: Clark has made "no showing" on the first round of docs.
Millett: But someone on your side of the table has looked at these documents. No one has said that "of these documents, they will do nothing but... " she asks Clark to fill in the blank

Clark says that's right, they have offered no specificity on the documents.

Wilkins gets Clark to agree that EP can be waived as a general matter. He asks Clark; so your argument is the incumbent doesn't have absolute right to waive privilege & the former pres can reject it and the court has to decide if incumbent desire to waive should be given effect?

So, Wilkins said, in determining whether to give effect to the incumbent president's desire to waive privilege, you say we should use a test that is essentially the same as a test we would use if the incumbent president said I'm not waiving privilege and...

Wilkins: this was just a fight between congress and the incumbent and former presidents over whether exec priv has been overcome.
You're saying we should use the exact same test?

Clark says its similar but not the exact same because of a statutory scheme "but boy, they are very similar in Supreme Court's precedent in Mazars and others," he adds.

Wilkins: But why cant it be the same test? As if it is like the incumbent's determination to waive priv didn't happen at all or is irrelevant and didn't matter? Why should we use the same balancing test?

Clark to Wilkins: In many ways you are, but the really big distinction is statutory language.

With that, we move to Douglas Letter, the general counsel for the House.

House Rep counsel Douglas Letter says Judge Chutkan's decision that we have one president at a time is the correct interpretation to which Judge Millett says yes, but to be fair, SCOTUS has shown that the claim can be made by a former president even when not asserted by current

Letter agrees and says but as Nixon v GSA put out, it is the view of the CURRENT president that are so obviously paramount.

Millett says the statute says even when incumbent is not asserting the privilege, the former POTUS can go to court, and can get an order that would interrupt disclosure but...

What she's grappling with: Assuming statutory criteria are satisfied under PRA, in Letter's view, what type of showing would a former POTUS need to make to be able to prevail over the views of an incumbent POTUS?

Letter says specific determinations can be made over documents and while many hypotheticals have been thrown around today, it becomes very difficult to find an example where determinations of a current president would not govern final decisions

Letter: 1) The former pres. could sue to challenge determinations made by the Archivist about what is w/in the restrictions or not. He could do that without challenging determination by current POTUS.
2) Maybe, there are circumstances where current POTUS hasnt weighed in on

Millett; But the statute says if the incumbent determines NOT to uphold. The statute itself talks about former/incumbent being at loggerheads

Letter: If there's some situation where the current pres. is acting in a way that is so far outside the realm of how a pres. is supposed to act, & for whatever reason, he's not being impeached, maybe congress is same party, but is acting so far outside the realm of reasonability

Millett cuts in: But what if it's Jan. 21 and a new POTUS has come in and the new POTUS says, I won. And Congress is in control of the same party as the WH. And every committee of the House/Senate and subcmte starts lobbing him document requests to the Archivist for everything..

Millett cont.:... covering all 4 years of the presidency and the new president says I disagree with everything the former president did and everything they stood for and I thought it was a travesty for the American people...

Millett cont.: And I think it's in the int. of the US that every single exec priv. document be released to these committees and to the public. Go do it. Just because I disagree with everything that person did.
Needless to say, the former potus comes to court to stop
What then?

House Rep cousnel Douglas Letter says: The current president would prevail in those circumstances...
Letter tries to frame it in terms of if that president fomented an insurrection and Millett shuts that framing down right away.

Apologies for typos.

Wilkins say whether or not the current president would prevail in that hypo, doesn't tell them what test to use today.
Letter: Putting aside the hypothetical, the test is rather clear: The current president is in the best position, best by far, to determine interest of exec priv

The courts should say the current president has spoken and that's it, we're done, House counsel Douglas Letter tells panel.

Judge Jackson looked at 2208 under PRA that says if incumbent pres determines not to uphold claim of priv, the Archivist should release the records subject to the claim at the end of a 90 grace period, unless directed by a court order.

She says: So, to the extent that the former POTUS is relying on the first part of that, I'm wondering whether it is possible to interpret a court action initiated by former pres.

Jackson says under that statute, it's not intended to put two presidents at loggerheads on broad question of exec privilege but to be a claim about whether Archivist has followed the rules with respect to what the statue gives the former president in terms of amount of time etc.

Jackson: It seems like it is very qualified language.
That section doesn't talk about constitutional rights or the extent to which a president can make a different call on EP on the former.

Jackson:It would seem the former pres. can raise a const. claim. The incumbent can take a look and for whatever reason, decides to waive it and then to the extent that the former pres still wants to say records should not be released, he can make a claim under PRA 2204E about...

Jackson cont.: practices of the Archivist or whatever else and the court can review that. Then you have standards.

Jackson: The statute actually says what is supposed to be done procedurally. So if the president has claims about those sorts of things not withstanding the incumbent's views on exec priv, then he can raise them.

Jackson: But the 2nd part of this, (the "by a court order" bit) that's where we get to former pres raising executive privilege in federal court.

Jackson: I think I can still read 2204E of PRA as allowing former pres. to make a kind of claim that the rights & privileges the statute provides, would prevent release? Am I misreading 2204e?

Jackson to Letter: Do you concede it allows for exec priv claim brought by former president in contrast to what incumbent has said?
Letter: I can't give yes/no, but a lot of what you say is correct. But remember, 2208 under PRA is specifically the provision that talks about...

Letter continued: ...disclosure to public. It doesn't talk to this case, but you have said, if there were a claim instead under 2208, there are hypotheticals in which a court could rule on certain things depending on what the current and former president have done or said.

Letter: Yes, there are claims, involving requests from the public for access. But what we have here, is a request by Congress, covered by PRA 2204E, which has to be read in conjunction with 2204C2 which says nothing should be construed to expand base privs afforded to former pes.

Letter: That means the former president can raise privilege claims, as we've said, the current president should overwhelmingly win those fights if they are at loggerheads.

Letter: This case is not about a president making a personal claim saying I own those records, we know he does not own those records.
Here, Mr. Trump has said clearly, he's suing in his official capacity.

Letter says this case does not raise sep of powers issues because the head of the executive branch and head of the legislative branch are in agreement here.
Wilkins said this argument was made in Nixon GSA

Letter: There was a clash because Nixon was saying those papers were mine. Trump can't say that.
Wilkins notes: But that didn't cause a clash between Congress and the office of the presidency, it was a clash between his personal property rights and the law.

Letter reiterates, what they are arguing here is that Trump is allowed to make an executive priv claim if he likes, but it is the current president, who is aligned with congress on this, that gets the final say to decide what is in best interest of the US

People commenting to me that they can't follow this thread because of the legal language and subject being complicated... Good news for ya: Reporting is not limited to tweeting out snippets from a hearing. I'll have a story on this breaking it all down later for @dailykos.

Letter again, on subject of balancing test, reiterates that there is no clash between the branches in this case. The president (Biden) is in complete agreement with Congress that the docs must be released.
Wilkins says don't we have to consider scope, necessity and burden?

Letter: Sen. Select Cmte v Nixon *was* a sep of powers issue because it involved a sitting pres.
Wilkins says he doesn't understand. If a former president raises exec priv, you don't do a balancing test but if an incumbent raises it, you do a balancing test?
Letter: That's right.

Letter: And here's why it makes sense under SCOTUS doctrine: One president is in charge of the exec branch. On balancing, it is up to that president to make the balance. The need here is extremely pressing, it's so great that EP is not necessary here.

Letter repeats, Senate Select Cmte v Nixon, Mazars, are separate cases and Wilkins says, but Nixon v GSA did involve a former president and said there were concerns over powers.

Letter: But they dealt w/Nixon's argument in a different context. Here we have the incumbent who has actually looked at the docs & did the balancing. This isn't a constitutional claim facially against a brand new statute. This is about specific docs in a specific context.

"It would be astonishing for this court to override this president and congress," Letter remarks, as he and Wilkins get into the weeds about how to interpret Nixon v. GSA in this case.

Judge Millett asks Letter if there are rules in congress or on cmte that could be internally enforced that would give weight to the confidentiality agreement?
Letter says diff cmtes have diff rules about confidentiality.
What about the select cmte?

Letter says his understanding is that the select cmte has no rules on this on its own but is governed by the rules of the House which provide that records of a committee belong to a committee and to the House.

So, the House could decide, voluntarily to--if the Archivist sent the records to Congress and said, I really hope you don't publicly disclose these--- the house could make a determination to abide by that or not but that would be House decision.

Millett says, what if Archivist says, I'm making this decision based on accommodation between the branches, we've worked through it, found an agreement and it is being provided subject to promises of confidentiality by the cmte as an entity and each of its members?

Letter says it is extremely likely that when accommodations like that are reached, congress would abide by them. But neither the president nor the courts have any authority under sep of powers to issue any binding decision or rule.

Millett: But I'm just asking about consequences... are they just for that member?
Letter says there could be. Congress could discipline a member who violates rules about confidentiality.
This is what Wilkins says he was getting at earlier.

Wilkins: "You can't issue a protective order that binds congress, but you can issue an order saying Archivist can't disclose this to congress unless there is an agreement about confidentiality."

We're getting close to the end here.

Jackson pressed about merits for a momemnts again and then asked what the outcome would be, should the court uphold the lower court's ruling denying Trump's injunction or should they dissolve the injunction? Or should Trump have further review granted to him?

If further review granted, that means it would go to the full appeals court, all 11 judges, or it goes to the Supreme Court for consideration.
Letter reiterates that the House wants the court to break up the lower court's injunction and have the records handed over immediately

Acting US ass't atty general for the DOJ's Civil Division Brian Boynton is now up. He represents the National Archives and is clarifying to judges the need for documents by the committee, underlining how docs in first three tranches are being submitted on a rolling basis.

Biden/Congress have agreed to defer production of some documents, so that Biden could decide on whether to assert privilege OR 1/6 cmte could decide to withdraw a request altogether.
That move seems particularly prudent for the cmte in hindsight of these arguments today.

Judge Jackson asks Boynton if it is his view that an incumbent wins every argument if there's a difference of opinion. Is there really no test to apply?
Boynton: It may well be the case that an incumbent is going to win most of the time, perhaps all of the time.

He continues...

Boynton: We don't think this court should make that determination. We don't think you need to make a ruling that says the incumbent always wins. This is an unsettled area of the law and no need to reach that conclusion here.

Instead, Boynton, rep'ing the National Archives, recommends that the court reviews this deferentially and agrees with the incumbent's decision that it is in the interest of the US that Trump cannot assert privilege.

Boynton: You don't need to get to balancing confidentiality vs need. In this case, the incumbent's decision should prevail because the congressional need overcomes whatever residual confidentiality interests there were on behalf of the former president.

Jackson seeks to clarify what Boynton means. In the situation, she says, we have a decision by the incumbent. There is, perhaps, a separate separation of powers concern about the court coming in and making this decision to award it or to say, the incumbent has it wrong.

Jackson: In a world in which we were called upon to resolve docs to be released, we may do the balancing test. But in this situation, where there is not only a lack of dispute between legislative and executive, and we have the incoming exec having actually made a determination...

Jackson cont.: ...about whether the docs should be released... in this world, the court swooping in to do some sort of balancing test actually raises its own sep of powers concerns in terms of power of the court to resolve or 2nd guess what this exec is saying, is that right?

Boynton: Yes...having a court referee this dispute before the incumbent & former does raise those kinds of sep of powers concerns."
This should lead the court to determine, if there is any review here, its highly differential,w/ greater weight to incumbent rather than the former

If you asked me right this second how I think the court is going to rule, I would say signs indicate the court will side with the House and is working overtime right now to anticipate the challenge coming from Trump should he lose.

Judge Millett and Boynton are going back and forth about the priority of incumbency vs former presidency and cause of action.
In this case, there's no cause of action for Trump to bring a challenge either to statutory reqs in PRA or to the authority of the 1/6 cmte under Const.

To be clear, in previous tweet the claim that there is no cause of action for Trump to bring a challenge --- that is Boynton speaking.

Judge Millett says executive privilege is the "lifeblood" of the president's ability to conduct business on behalf of the U.S. She raises concern about what happens when incumbent is always given priority and privilege expires the moment a president is out of office

She is concerned about how quickly these requests from Trump have come now that he is the former.
Boynton acknowledges the sensitivity of exec priv and is not interested in disclosing privileged info willy-nilly

Boynton: The circumstances in this case are extraordinary, involving an attack on the Capitol & the events surrounding it. He adds, this should be a straightforward case.A former pres. displacing views of incumbent doesn't need to be resolved now.
(We're back to public interest)

The Archives, Boyton underlines, is also still going through a review process with the White House, so they aren't arguing for a blank check on exec privilege

Now we move to rebuttal from Justin Clark. He has just four minutes.

On immediate release of docs if Turmp loses this: Clark says Trump would need and request some period of time, "not a long period of time," for another administrative stay or injunction pending appeal from this court in the event of gov't winning this and admin stay dissolving.

Judge Millett presses Clark for time, and Clark says it will be about 14 days. But Judge Millett says, "We're not there yet because your first argument is, 'we should win.'"
Clark says other than wanting to make that clear, they will rest their argument on their briefs.

That does it. I'll have an updated story for @dailykos breaking it down

And as far as when we can expect a ruling? No idea, to be frank. But it should be noted that Millett acknowledged, at the very least, they were on a fast track with this case.

Appeals court judges seemed quite skeptical of Trump's claims to executive privilege over disputed 1/6 records during lengthy oral arguments in Washington.

Read more about it here:
dailykos.com/stories/2021/1…