Thread by @AndrewFeinberg

Wow. Trump lawyer Justin Clark just stepped in it with Judge Millett. He's telling her that a former president could sue to stop a current president from using a previous administration's records to conduct foreign policy and national security decision-making.

Clark can't give Millett a situation un which he thinks a court could let a current president use those documents under her hypothetical.

Judge Jackson is pointing out that GSA v Nixon was about whether Nixon retained a confidentiality interest in documents Congress had passed a law to let the US take possession of after he'd resigned.

"So to 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, because that's not the circumstance. I also don't necessarily see it in the statute," Judge Jackson says

Clark tells Judge Millett that courts should not give any deference to decisions of incumbent presidents with regard to executive privilege.

Jackson: "You say that there is the opportunity for the court to make this determination. and I guess what I'm asking is, do we differ in any way to the incumbents determination that those criteria are satisfied?"

Clark: "I actually don't think so."

Now Millett is noting that Trump hasn't made any particularized assertions of why any of the individual documents requested by Congress should be privileged.

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

..., that's your position in this case?

Clark: I'm not sure I follow, your honor.

Millett: what arguments have has your client made or have you made in this case that says it's an individual document...where is that in the record?

Clark: It's not there yet.

Clark to Jackson: In this instance, the former president has made really, I think, very consistent and honest attempts to make calls with respect to executive privilege.

Jackson: That’s not what your brief says, by the way. I’m surprised to hear that. Because your brief suggests, without evidence as far as I can discern, that the former – that the current president has not done.

Judge Wilkins is *very* skeptical of Trump's argument that courts must review documents themselves before deciding whether they can be released.

Millett is also not a fan, apparently.

"You said this comes after the incumbent President has waived executive privilege and that doesn't make sense to me".

Clark: There are steps prior to that that a court needs to review. Before you get to that analysis, one is the critical mean analysis –
Millett: Okay. Please stop, please stop because I thought through this argument, all right?

Jackson: So why then would it be that the court should preference the former president's concerns about confidentiality, even though he had may have the superior knowledge of what the documents were about?

Clark: There are considerations such as if a document is going to be an embarrassment to a former president...or cause political turmoil...

(and there it is)

Next up is Doug Letter, general counsel for the House.

Judge Millett is probing him on situations in which a former president *could* have a legitimate privilege claim that would support blocking documents.

Letter says a hypothetical could be if an incumbent says he's going to release everything from a prior administration solely to punish the former president.

This is giving me flashbacks to when Letter argued Mazars before SCOTUS and was unable to say whether there should be any limits on Congress' power to demand documents.