Thread by @julie_kelly2

Arguments now before DC Circuit on Trump’s appeal of Judge Chutkan’s rejection of Trump’s claim of executive privilege to prevent J6 committee to access his official records. I explained the ruling here:

amgreatness.com/2021/11/10/oba…

Judges Millett, Wilkins, Jackson presiding. Jesse Binnall representing Trump. Joe Biden has denied Trump’s claims of executive privilege at least twice. Judges now questioning Trump’s authority to override Biden’s unprecedented denial of executive privilege for a past president.

National Archivist has agreed to begin producing documents requested by Pelosi’s committee. This includes docs, correspondence, meeting/call logs dating back to April 2020. Nothing to do with January 6, everything to do with Trump’s efforts to stop election fraud.

Just a sample here from J6 select committee.

Binnall asking court to enjoin archivist from producing subset of documents Trump has marked as executive privilege not all documents.

Argument is related to authority of Presidential Records Act, constitutional separation of powers, and statutory claims of executive privilege.

So Democrats create a special legislative vehicle to investigate pas president and everyone around him. A U.S. President for the first time denies exec privilege, authorizing highly-politicized Congressional committee to obtain records far before official deadline. Slippery slope

One judge questioning Biden's broad-brush denial of executive privilege. Here is White House counsel first letter denying Trump's claims:

"Who decides...the current occupant or the former?" Judge Jackson asks. "The decision is whether to accommodate or resist the legislative branch. Why should the former president make that determination? If we are looking at this as who decides...why should he?"

Now arguing restrictions under 2204 and 2205:

law.cornell.edu/uscode/text/44…

law.cornell.edu/uscode/text/44…

It's sort of amazing to listen to this hearing without any acknowledgement that Biden's decision is purely political, that the J6 committee is doing his political dirty work and has nothing to do with national security.

"How are courts supposed to resolve the contest between the two? How do we weigh the competing claims...these very grave disagreements?"

Another stupid hypothetical--a president waiving exec privilege to obtain docs related to foreign relations and former president objecting.

Trump's lawyer won't answer the hypothetical because it's stupid and has nothing to do with this. Judges avoiding the overtly-political nature of Biden's denial of executive privilege and pretending it is legit national interest.

Judge Jackson, on Biden's short list for SCOTUS, arguing loudly that current president's rights "overcomes" confidential rights of former president.

"Incumbent gets to decide." Jackson says every law supports this.

rollcall.com/2021/06/14/sen…

Binnall now pointing out court's jurisdiction from statute.

Jackson: "What is the court supposed to do? There's no deference given to the current president?"

Binnall says no, needs objective test. Court raises Nixon vs GSA as case law that current president rules

All 3 judges are Obama appointees.

"We have one president at a time." Millett says. "The former president loses," she says per Nixon v GSA.

Binnall arguing other factors should be weighed, court asks what factors. "What else are we supposed to weigh?"

Judges confronting Binnall why he hasn't articulated certain documents should remain confidential. Not sure why no one raising the political nature of J6 committee and Biden's exec privilege claims. This is pure political revenge.

Hope GOP is paying attention.

Correction, Clark not Binnall arguing now. (Hard to tell without video.)

Judge Wilkins making clear precedent favors incumbent president, citing Nixon case law.

Millett - "Please stop."

"Doesn't matter if documents are entitled to executive privilege. Incumbent has waived it."

Millett - "You're going to have to change the score on that scoreboard."

Jackson says Trump needs to show court the "harm" that waiving exec privilege cause. Clark says harm to Constitution, argues that statutory confidentiality is for a period of time for a reason.

LOL Jackson says incumbent knows best the confidentiality interest for executive branch, has relationship with legislative branch.

Everyone pretending Biden is an objective player here.

Clark finally raising factors of releasing "embarrassing" content about political rival.

Court confronting Clark about non-specificity of which documents should be protected. Clark admits they don't have a specific list yet. Still not arguing the overt political nature of the committee, Biden's response, etc.

Millett commends Trump for going thru all requested docs

Biden team up next. Long list of lawyers including Mary McCord, the "Where's Waldo" of lawfare inside and outside government against Trump.

Millett interrupts to claim that we have one president at a time, says former president does have standing in exec privilege claims.

Millett - "What is envisioned...that former president can make to overcome decision, silence by incumbent on executive privilege?"

Doug Letter, lawyer for Congress, trying to explain why incumbent should overrule former.

Millett now raising hypothetical angle of denial of...

excuse me, political angle. Takes office and wants every confidential document for revenge.

Letter: What if he "fomented an insurrection,"

Millett: "No no, I'm not going to make it that easy. I'm going to avenge" my predecessor.

Letter says it's a "difficult" hypothetical, LOL

Letter dismissing idea an incumbent would want to waive privilege to "punish" his former rival.

Of course, this is EXACTLY what Biden is doing.

Biden: "The Documents shed light on events within the White House on and about January 6 and bear on the Select Committee’s need...

to understand the facts underlying the most serious attack on the operations of the Federal Government since the Civil War. These are unique and extraordinary circumstances. The constitutional protections of executive privilege should not be used to shield, from Congress or...

the public, information that reflects a clear and apparent effort to subvert the Constitution itself."

Millett keeps pushing Letter to answer her hypothetical, which is far closer to reality than her previous hypothetical. "Highly unrealistic hypothetical," Letter says.

Wilkins - The statute doesn't tell us what to do but the Constitution does. The current president holds sway as head of the executive branch. Millett steps in to dispute, says former president still has standing.

"Back to original hypothetical." Former president argues...

national security issues as incumbent wants to expose all documents for revenge but puts people at risk such as foreign agents.

"People will die." Asks Letter what to do, he insists it's still incumbent's choice.

"Nowhere close to what we've faced as a nation."

Until now

Wilkins: Why do we not do a weighing of the interests? Raises hypothetical of 4 former presidents objecting to incumbent waiving exec privilege on confidential documents.

Letter says incumbent decision still prevails.

This actually is a very interesting debate. I doubt...

this court will rule in favor of Trump but discussion is worthy on both sides and a good future study. I thought these judges would give Team Biden a pass -- they are not.

Millett notes Congress and Exec Branch are politically aligned. Letter says Trump has no official capacity

"If we do any balancing, Biden still wins. There is no clash here between the branches." Says Biden made clear why J6 should get the documents.

Wilkins still pushing on need to balance the requests. "Don't we have to consider scope of the request, burden?"

Letter says no.

Wilkins asks Letter if court has standing to overrule Congress claims on exec privilege but not incumbent president. Letter says yes, again emphasizes the branches are not in conflict in waiving exec priv for Trump.

Letter says only incumbent knows best interest of exec branch.

"It would be astonishing for this court to override the incumbent president and Congress" on exec priv, Letter says.

Chutkan ruling in favor of Biden is "indisputable."

J6 committee rules on confidentiality same as House so they could publicly release documents, Letter says.

Neither president nor courts can order documents remain confidential, Letter says.

"Congress could discipline a member who violates confidentiality" and I'm LOLing because Schiff is on J6 committee.

Letter: Presume Congress "acts in good faith." Wilkins suggests court...

could impose some sort of protective order or "limitations" to ensure confidentiality.

Jackson: If we were to affirm DC District Court denial...would records be released immediately?

Letter: Injunction dissolves, records disclosed immediately.

Millett asks about committee timetable. Letter says he doesn't know...."committee moving very very rapidly."

Well, sounds better than "we have to do this before Republicans take over the House."

DOJ Atty Boyton up now. "Extraordinary events of January 6" he sets up.

Millett notes document requests date back to April 2020, beyond scope of January 6 events.

She presents her politicized hypothetical again to Boynton. This happened "pretty quickly" on the heels of Biden taking the White House.

This is a "unique" situation, admits Biden's...

denial of Trump's exec priv claims are unprecedented.

Jackson asks Boynton, representing National Archives, if he agrees the incumbent's view always "wins."

Boynton says mostly, not always. They want a caveat to protect Dem president in the future, pretty obvious.

Millett returns to her political hypothetical about immediately denying exec priv for predecessor because this happened so quickly after Biden took office.

"Circumstances in this case are extraordinary due to the attack on the Capitol."

Four-hour disturbance - "extraordinary"

Done.

Sorry. I meant the hearing was done. No ruling.