Trump Archives Case Gets Tepid Reception At DC Circuit

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It was a weird morning for Team Trump at the DC Circuit, where the appeals court heard oral arguments in the dispute over presidential records demanded by the January 6 Select Committee.

On the one hand, Judges Patricia Millett, Robert Wilkins, and Ketanji Brown Jackson — all Obama/Biden appointees — appeared unimpressed with Kraken alum Jesse Binnall’s arguments, as well as those of his co-counsel Justin Clark, a Trumpland fixture. On the other hand, the panel seemed disinclined to completely dismiss the former president’s contention that he retains some executive authority even after leaving office.

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The case rests on an unholy trifecta: a bad case, a bad law, and a bad president.

The bad law is the Presidential Records Act (PRA), which says that, as here, where the sitting president agrees to release records to Congress and the former president objects, the records will be released absent a court order.

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What basis would the court have for enjoining such a release?

Good question!

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Nixon v. General Services Administration, the bad case, affirmed the constitutionality of the PRA, which made presidential records the property of the federal government. But the Supreme Court vested the former president with some residual executive privilege authority, albeit less than that of the sitting president.

How should the court weigh these two competing interests?

Another good question!

As for the bad president, well, we all lived through it.

So how should a court weigh an assertion of privilege from a former president who is transparently trying to shield his own role in fomenting a riot under the guise of protecting the interests of the executive branch?

Third verse, same as the first.

Along the way, Team Trump has made various arguments in this case. They seem to have laid off the claims that the PRA is illegal and that the current president is unqualified to waive executive privilege as to his predecessor’s papers. As of now, they’re mostly just insisting that the appropriate balancing test is the one from Trump v. Mazars, in which the Supreme Court said that Congressional demands for a president’s records must be evaluated to determine 1) whether Congress can get the information elsewhere; 2) if the request is no broader than reasonably necessary; 3) if it’s relevant to a legitimate Congressional purpose; and 4) if it doesn’t overburden the sitting president.

The government counters that Mazars implicated the personal records of a sitting president in the hands of a private party (his accountants), and is totally inapposite here when the issue is government property held by a sitting executive who has okayed the release.

US District Judge Tanya Chutkan agreed with the Justice Department and House Counsel, although she added analysis stating that Trump would lose anyway even if the Mazars test was applied. But the appellate panel seemed much more receptive to the former president’s separation of powers argument.

Where the trial court said there was no interbranch conflict because the legislative and executive branches agree that the records should be released, at least two members of the panel seemed open to the idea that there must be a balancing test to weight the former president’s residual privilege interest against the incumbent president’s waiver.

Over and over Judge Wilkins returned to the point that the Supreme Court couldn’t possibly have intended to confer some measure of executive authority on the former president in Nixon v. GSA, but simultaneously render it a nullity by decreeing that it could never outweigh that of the incumbent. And Judge Millett seemed to think that the former president’s authority progressively wanes after January 20, and thus there must be some balancing test for assertions of privilege coming just six months after being booted out of office.

Only Judge Jackson seemed unequivocally opposed to Trump’s position. It seems likely that she was the prime mover behind an order last week instructing the parties to address jurisdictional issues and whether the statute itself made the case non-justiciable. Neither of the parties seemed receptive to this argument, to say nothing of her colleagues on the bench, and indeed the issue was dropped after the first 20 minutes of the three-hour hearing.

But Jackson suggested both that separation of powers might preclude the court’s intervention into a political question (i.e. the propriety of a non-invocation of privilege), and that no stay should be granted if it appeared that Trump was likely to lose on the merits, even if the court determined that a balancing test ought to be applied.

The court seemed mindful of the time pressure, and is likely to issue an opinion soon. As for whether SCOTUS will want to jettison the purported adherence of six of its members to the theory of the unitary executive  … who even knows.

Elizabeth Dye lives in Baltimore where she writes about law and politics.

Topics

D.C. Circuit, Donald Trump, Government, Jesse Binnall, Justin Clark, Ketanji Brown Jackson, Patricia Millett, Robert Wilkins


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Originally posted on: https://abovethelaw.com/2021/11/trump-archives-case-gets-tepid-reception-at-dc-circuit/