Thread by @ZoeTillman

Hello from the DC Circuit's virtual courtroom, where arguments are about to begin in Trump's fight to stop the Jan. 6 committee from getting his White House records. He lost the first round, then the DC Circuit agreed to pause things while he appealed: buzzfeednews.com/article/zoetil…

The DC Circuit streams live audio, so anyone can listen to this morning's arguments in the Trump v. Thompson case here:

It was not a favorable panel draw for Trump:
- Judge Patricia Millett, Obama nominee, on a panel that rejected an earlier Trump challenge to House Dems seeking his records (buzzfeednews.com/article/zoetil…)
- Judge Robert Wilkins, Obama nominee
- Judge Ketanji Brown Jackson, Biden nominee

The DC Circuit audio line just kicked on for me a few minutes late, Trump's attorney Jesse Binnall has begun his presentation

The court is starting with this question that the panel raised in an order last week, about whether the language of the Presidential Records Act strips the court of jurisdiction to hear this kind of case at all — that is, that the Archivist's decision isn't reviewable

Jackson is parsing Trump's challenges to the committee's general legislative authority vs. his specific claims of exec privilege of certain docs. She says it sounds like a lot of the args in his brief that are critical of the committee are "not really the point"

Binnall agrees that the injunction request is about stopping the production of docs they contend are privileged/restricted, but says the arguments about the committee's requests being overbroad and lacking legit legislative purpose are tied up in that

Back to this briefly, worth noting that Wilkins drove the questioning on this, and kept pressing Binnall to imagine a hypothetical where subject matter jurisdiction is limited to whether a former prez's rights/privileges were violated by the Archivist

https://twitter.com/ZoeTillman/status/1465692423594680322

Wilkins wanted to know if this hypothetical limit on jurisdiction would knock out some of Trump's claims in the complaint. Binnall insisted the answer was no.

Another Trump lawyer, Justin Clark, is up next to discuss the executive privilege issue

Millett tells Clark she doesn't understand the paradigm he starts out articulating about exec privilege, Clark apologizes and says he likely wasn't clear, "I get that often"

Clark argues that to make a decision about whether a doc is privileged, you have to look at its characteristics at the time it was created, and that Biden and the Archivist haven't done the more specific analysis of the Trump docs at issue to make that kind of determination

Millett says her understanding of what's at play here is not about contents of docs when they were created, but about what a court should do when a former president disagrees with an incumbent president's decision about invoking executive privilege

Jackson digs in: "This all boils down to who decides. Who decides when it’s in the best interest of the United States to disclose presidential records. Is it the current occupant of the White House or the former, who does have some interest in the confidentiality of the docs?"

Jackson says something that stood out to her from the committee's briefing is their arg that they couldn't think of another time when a former president got to have the "final say" on matters that relate to the present interaction among branches of govt

Re: when a former prez gets final say, Clark cites the PRA section that gives an outgoing president the authority to designate records as privileged for a period of time. Jackson comes back and notes that the other section at issue in this case creates an exception to that

Millett asks if Trump's position is that if an incumbent president wanted a former prez's records designated as privileged, a former prez could sue to challenge access. Clark demurs at first, recognizing this is a dangerous path to go down, but ultimately says yes

Clark tries to qualify this, saying if it were for foreign affairs/nat sec it would be for internal uses and different from the Jan. 6 committee. But Millett has him clarify that their position is that regardless of the incumbent's intent with the docs, a former prez could sue

Why does this matter? Courts already are wary of getting in the middle of political fights, and generally reject cases that ask them to second-guess decisions made in the interests of nat'l security. So Millett's hypothetical is a sweet spot of things courts do not want to do

Jackson is at the moment making clear that she really isn't sold on the idea that SCOTUS precedent (Nixon v. GSA) or the Presidential Records Act provide Trump with a right to sue here

Clark says Nixon v. GSA held that a former prez had certain rights over docs, and PRA codified the right to lodge a challenge over that. Jackson comes back and says that if Trump's ultimate position was right, Nixon should have won re: control of his admin docs, and he didn't

Jackson asks if courts should treat current/former president equally, give no deference to incumbent? Clark says, I don't think so. Millett jumps in to ask him to clarify that he's saying current prez doesn't get deference, Clark says that's right, needs to be an "objective test"

Millett pushes back, saying SCOTUS in Nixon v. GSA was "explicit" that the rights of the former president are diminished when the incumbent makes a call about the interests of the executive branch

Clark responds that there are other steps before getting to the weighing of incumbent/former prez interests, such as Congress' interest in the docs. But the idea of incumbent/former prez being on equal footing re: interests of exec branch is not going over well with the court

After more probing of that, Clark backs off, agrees that Nixon v. GSA does hold that all things being equal, the incumbent gets more weight than the former in asserting these interests, but insists it doesn't mean the incumbent always wins

Millett is now noting that Trump/his lawyers haven't articulated any specific, particularized interest in the docs he's arguing to withhold — that is, there's nothing for a court to consider in the record to assess whether Trump's asserted need outweighs Biden's decision

Clark says they want a prelim. injunction and then a court could go through the docs (a proposition Millett was skeptical of). Jackson says that's backwards, that they're only entitled to a PI if they can show they're likely to win on the merits

Wilkins, re: Trump's argument for a court to go through the docs at issue to determine if privilege should attach: "It seems to me that your argument is inconsistent with our precedent."

Wilkins explains that the precedent holds that Trump could in theory make individualized challenges to the release of certain docs for specific reasons, a la the govt explaining why certain docs are exempt from FOIA, but Trump hasn't done that here

Millett says the idea of a court coming in to do doc by doc review after the incumbent waives exec priv doesn't make sense, because a court could say, yep, these are all privileged, but that doesn't change the extra weight the incumbent gets to waive it

We're an hour and a half in, Trump's lawyers are still arguing, things have not gone well for them — panel has expressed deep skepticism that there's jurisdiction for this to be in court, as well as to the broader notion that Trump (or any former prez) could win in this situation

Wilkins asks if they're arguing for roughly the same balancing test as if an incumbent refused to waive privilege and Congress took the admin to court. Clark says generally, yes. Wilkins asks why, since that would treat the incumbent's determination as irrelevant

Clark says the difference is that there's a statute here laying out the process as far as the former president's involvement.

Millett ends this section by noting Trump does get some credit for at least going through the docs and claiming privilege over some, but not all

That last bone to Trump from Millett feels pretty minor compared to the previous hour and a half of questioning, fwiw.

Next up is House General Counsel Doug Letter

Millett starts by flipping to the other side of the coin, and says that the section of the Presidential Records Act at issue envisions a scenario where a former prez goes to court to challenge release, so she asks Letter, what that scenario could look like?

Letter says they've thrown around various hypotheticals but found it hard to come up with anything realistic where the incumbent prez doesn't prevail, maybe they could come up with something "extremely strange" if they had to

Pressed by Millett, Letter says perhaps if the incumbent was acting so far outside the realm of how a president is supposed to act and so far outside what's reasonable

Millett proposes a hypo where a new president won in a landslide and says I'm going to release all of the former president's docs. Letter starts to say, well perhaps if that former prez "fomented an insurrection..." and Millett immediately stops him from using that framing

Millett says the hypo is, a new prez won in a landslide and says they're going to avenge the American ppl by releasing all of the former prez's docs to any committee that wants them and the public. Letter says in that case, a former prez could make a strong arg against release

Wilkins presses Letter to articulate what the test is — it's not enough to say the incumbent wins, courts needs to know how they resolve this. Letter says it's that the incumbent is in the best position, "best by far," to determine the exec branch's interests at the time

Should add that Letter qualified this by saying this is the test setting aside the unrealistic hypotheticals they've been discussing

https://twitter.com/ZoeTillman/status/1465718642188947459

Wilkins is digging in on why there shouldn't be some balancing test to consider a former president's exec priv claim — says SCOTUS in Nixon v. GSA said former prez had an interest, just diminished. Letter says Nixon was different b/c that was about personal property interest

Letter says DC Circuit precedent re: a balancing test (Senate Select Committee case) for a claim of exec priv doesn't apply because there is no separation of powers issue — exec (Biden) and Congress agree, and there is only one head of the exec branch

It's really a Wilkins/Letter show here. Wilkins' Qs indicate he's grappling with how to deal with Nixon v. GSA and the idea that a former president has some right to assert an interest

Letter says there's no separation of powers issue — Trump can say Biden got it wrong, and ask a court to override Article I *and* Article II (that is, the exec and Congress are in agreement), but he can't imagine a hypo that's anywhere close to realistic where that's appropriate

Wilkins has a few times asked about a scenario where, say, four former presidents come together to back executive privilege over certain docs and oppose an incumbent's decision. Letter says the number doesn't matter, only the current prez has the necessary info about US interests

Jackson asks about next steps — if the court upholds the district court's order denying Trump an injunction, should they dissolve the temp. injunc that blocked production? Or give some consideration to Trump's ability to get further review (petition for en banc review or SCOTUS)?

Letter says, unsurprisingly, that Congress' position is the court should dissolve the circuit's administrative injunction and the docs would be turned over ASAP

Letter notes that the Archivist has been handling production on a rolling basis, and that the exec and Congress have agreed to defer action on certain docs, so Biden could still decide to assert privilege or the committee could withdraw the request for them later

Next up is Brian Boynton from DOJ, representing the National Archives. Millett jokes that she hopes he didn't make lunch plans

Boynton largely echos Letter/Congress' arguments, but from the perspective of representing the views of the exec branch. He says it's not the same as weighing exec v. Congress fight over privilege, and that there is no test for this situation that exists in the current case law

Boynton says the court doesn't have to go so far as to say, the incumbent always wins in this situation. Millett presses for a test. He says that it's to "deferentially" review the exec's determination of what is in the United States' interest

Jackson asks if it's correct that the exec's position is that having the court step in to resolve a fight between an incumbent/former prez when there's no fight between the two branches itself raises separation of powers concerns — courts being asked to second-guess exec

Boynton says yes, and at a minimum is why any balancing should be highly deferential to the incumbent's determination (but they don't think the court needs to even get to a balancing test that looks at Congress' need v. Trump's interests)

Millett wants to know the exec branch's position on what interests a former prez has in their docs in this type of situation. Boynton says it's possible they would have knowledge an incumbent doesn't about why some docs are actually highly sensitive and shouldn't be disclosed

But Boynton points out that Trump hasn't made that kind of representation in this case (going back to comments the judges made earlier about the lack of specific declarations explaining Trump's objections to the specific docs at issue)

Millett expresses concern about the idea that executive privilege expires the moment a president leaves office — that it would make the privilege meaningless while a prez is in office if everyone knows it immediately loses all power once they leave

Boyton says the circumstances in this case are "extraordinary" given the attack on the Capitol, but also argues that the Biden admin isn't wholesale giving the committee access to everything right away, and is going through a review process with the Archives

Boynton's presentation is over, it goes back to Trump lawyer Justin Clark for rebuttal

Clark says the only point he wants to make before any questions is that if they lose, they'd like time to pursue a challenge. Millett says for what and how much time - like 14 days to petition SCOTUS a la Mazars? Clark says yes that sounds right, that would be their plan

And that's a wrap. No indication of when exactly to expect a ruling, but Millett noted the time-sensitive nature of all of this, and the court took it up on a fast schedule, so the implication is that there'll be a quick turnaround for an opinion

There are a lot of really important reasons why remote public access to court proceedings is a good thing. But I'd be lying if I said I didn't also appreciate the ability to eat snacks during a marathon hearing like that

New: Another Court Is Wary Of Giving Trump Power To Interfere With Congress' Jan. 6 Investigation
buzzfeednews.com/article/zoetil…

"It seems to me that your argument is inconsistent with our precedent."

The DC Circuit probed, and occasionally tore apart, Trump's arguments for being able to fight Biden's refusal to back his post-presidency executive privilege claim: buzzfeednews.com/article/zoetil…

The panel was dubious of Trump's likelihood of winning this fight, but it wasn't a total slam-dunk day for Congress and the exec branch — the judges also expressed concerns about the idea that a former president lacks any agency at all in this stituation buzzfeednews.com/article/zoetil…