This morning the DC Circuit will hear Donald Trump's appeal of a DC District judge's refusal to stop the National Archives from releasing records to the January 6 Select Committee. I will liveblog it for you, so, fingers crossed that Team Trump delivers its usual high-caliber hijinks.
Three weeks ago, Judge Tanya Chutkan dick kicked Trump's request to enjoin the Archives from releasing his records. Apparently the court failed to see the logic behind his lawyers' argument that the former president's claim of executive privilege counts more than the sitting president's waiver. Then she dick kicked him again when he demanded that she stay her own order.
But the appeals court hopped in and did Trump a solid and put the order on hold. Only it was a very tiny solid, since they set a blistering schedule, forcing the lawyers to submit their briefs in rapid fashion and argue the appeal TODAY.
Trump is represented by Kraken alum Jesse Binnall and RNC dude Justin Clark. Clark argued the last hearing, and he was marginally less off-the-wall than Binnall in his briefs. Here's some background on the November 4 hearing. TLDR, the Trumpers just keep arguing that the proper legal standard is the four-part balancing test for congressional subpoenas from the Trump v. Mazars case, despite the fact that the issue there was Trump's personal records in the hands of his accountants. This case involves presidential records, which are the property of the federal government, in custody of the federal government, and presumptively destined to become public within 12 years as dictated in the Presidential Records Act.
And, hey, wouldn't ya know it, that's what the judges want to discuss. Here's the most recent order from November 23:
It is ORDERED, on the court’s own motion, that the parties be prepared to address the following questions at oral argument: Does the provision in the Presidential Records Act providing that the Archivist’s “determination whether access to a Presidential record . . . shall be restricted . . . shall not be subject to judicial review, except as provided in subsection (e) of this section,” 44 U.S.C. § 2204(b)(3) (citing 44 U.S.C. § 2204(e)), implicate this court’s or the district court’s jurisdiction in this case? See, e.g., National Coalition to Save Our Mall v. Norton, 269 F.3d 1092, 1094-95 (D.C. Cir. 2001). If so, what effect, if any, do §§ 2204(b)(3) and 2204(e) have on the subject matter jurisdiction of the district court to adjudicate any of the requests listed in the Complaint’s Claim for Relief?
In plain English, they want to know if the Presidential Records Act deprives the court of jurisdiction to hear this suit at all, and the case they're citing says that it's legal for Congress to insulate laws from judicial review.
Here's the relevant statutory language:
During the period of restricted access specified pursuant to subsection (b)(1), the determination whether access to a Presidential record or reasonably segregable portion thereof shall be restricted shall be made by the Archivist, in his discretion, after consultation with the former President, and, during such period, such determinations shall not be subject to judicial review, except as provided in subsection (e) of this section. [...]
The United States District Court for the District of Columbia 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.
Yeah, yeah, it's boring. But if the judges can force Trump's lawyers to deviate from their wackass howling, this is what they're going to make them talk about.
And one more thing: Trump has drawn an absolutely terrible panel for this hearing, with three Obama/Biden judges, two of whom already ruled against his sweeping claims of executive privilege. Before Biden elevated her to the Circuit Court, Judge Ketanji Brown Jackson ruled that Don McGahn had to testify to the House from her perch at the District Court level. Judge Patricia Millett was on the original Circuit panel which ordered Trump to turn over his tax returns in the Mazars case. And Judge Robert Wilkins was appointed by Obama. So, make of that what you will.
Okay, enough foreplay. Let's get it on! Listen along here.
9:33 Wooohooo, Jesse Binnall up first on jurisdictional issues. Starting out with the BIG CRAZY.
9:38 Binnall was yammering for like 30 seconds about the history of the Presidential Records Act before Judge Wilkins and then Judge Jackson jumped in to ask about subject matter jurisdiction. I *think* Binnall's argument is that the PRA language only blocks courts from adjudicating challenges by third parties (i.e. by FOIA) to the National Archivist's decision whether or not to release a record. Binnall says it doesn't limit challenge by a former president.
9:42 Okay, Binnall isn't super crazy this morning. YET.
But he's getting his ass kicked all over the place because he wants to read jurisdiction into a statute that isn't really well drafted.
9:47 Judges Wilkins and Jackson have managed to force Binnall to narrow his argument from all the whining about the Select Committee's request being overbroad and politically motivated to the meat of the issue, which is whether the former president can assert executive privilege and whether the statute allows him to seek redress from the Court.
9:50 Binnall realizes he got boxed in, tries to backtrack. And here we are at Mazars, DRINK.
9:54 LOL, Binnall making a naked play for time for further briefing — remember, a delay is a win if your bet is that Republicans take back the House in 2023.
Now Justin Clark is up to argue the executive privilege issue.
9:57 Judge Millett is already on top of Clark for his muddy argument about the PRA. Clark is trying to "locate" the privilege in the creator, not the current executive.
9:59 Judge Millett points out that the privilege is temporary — it automatically expires after 12 years under the PRA — and asks why the incumbent president can't waive it early since it clearly does not belong to the past president for all time.
10:02 Judge Jackson: This all boils down to who decides? Is it the current president, or the former?
Side note: it is unequivocally bizarre that the FedSoc loons who have flogged this theory of the unitary executive God King President are now saying that the former president gets to overrule the sitting office holder.
10:06 Judge Jackson is whacking Clark over the head with the provision of the PRA that says the Archivist "shall" hand the records over "to either House of Congress, or, to the extent of matter within its jurisdiction, to any committee or subcommittee thereof if such records contain information that is needed for the conduct of its business and that is not otherwise available."
10:10 Judge Millett boxes Clark in with this hypothetical: Is it your position that the former president could stop the current president from accessing information that is vital to national security or foreign policy?
Clark says that's the holding in Nixon v. General Services Administration. It's not, which Judge Millett immediately points out.
Clark fudges, says "I would presume that the incumbent president would not release this information to the public."
Judge Millett: "You can envision that, I can envision other hypotheticals."
10:14 Judge Millett's hypo: Suppose a foreign leader wants to rely on promises from a former president, and that former president blocks release of the documents to allow the incumbent president to rebut the claim.
If the Court accepts that the former president has some residual executive privilege, what standard should the court apply to adjudicate this dispute between the two presidents. Clark wants the Mazars four-part test.
10:17 BTW, the Mazars test is 1) whether “other sources could reasonably provide Congress the information it needs in light of its particular legislative objective;” 2) the request for information must be “no broader than reasonably necessary to support Congress’s legislative objective.” 3) “Congress must adequately identif[y] its aims and explai[n] why the President’s information will advance its consideration of the possible legislation.” 4) the court “should be careful to assess the burdens imposed on the President by a subpoena.”
10:20 Judge Millett asks why Trump didn't ask for a protective order to stop Congress from releasing documents publicly. Clark says a member of Congress could read it into public record under Speech or Debate Clause.
10:25 Judge Jackson is telling Clark in no uncertain terms that she caught his fudge on Nixon v. GSA, and that she will not be allowing him to pretend that the Supreme Court elevated the former president's privilege interest over that of the current president.
"To the extent that you find in that case the right to come to court to dispute the right of the current president to disclose those records, I don't see it. I also don't see it in the statute"
Judge Jackson points out that the statute suggests that the former president may have a privacy right to personal records, perhaps not a right to go to court to contest the current president's executive privilege waiver.
10:27 Judge Jackson: "Even in Nixon, that interest was not sufficient to overcome the right of the current president ... If you're right, Nixon v. GSA comes out the other way."
Judge points out that Supreme Court said Nixon had some rights, but he lost that case.
10:31 Judge Jackson, citing legislative and judicial history: "When you have this kind of conflict between incumbent and former, incumbent gets to decide."
Clark cites this provision of the PRA:
If the incumbent President determines not to uphold the claim of privilege asserted by the former President, or fails to make the determination under paragraph (1) before the end of the period specified in subparagraph (A), the Archivist shall release the Presidential record subject to the claim at the end of the 90-day period beginning on the date on which the Archivist received notification of the claim, unless otherwise directed by a court order in an action initiated by the former President under section 2204(e) of this title or by a court order in another action in any Federal court.
The statute isn't great, TBQH. Because it appears to give the former president a right to sue, but gives the court no guidance on how to adjudicate the claim.
10:35 Court asks if the rubric should give deference to incumbent president, Clark says no and pivots to Mazars. Judge Millett says that's not the case under Nixon v. GSA.
Clark says that the PRA says that the court must evaluate whether the request for documents is related to Congress's business, and no deference should be accorded to the incumbent president's determination that it is.
10:38 Judge Millett says suppose the statutory criteria are met (i.e. suppose we say Mazars is the right test and it is satisfied). If the sitting president says to release the documents, who wins between the current and former president?
Clark says under Nixon v. GSA the incumbent president wins, realizes he fucked up, and tried to backtrack.
Note that Judge Chutkan, the trial judge, said that Trump would even lose under Mazars.
10:46 Judge Millett says that Trump hasn't made any particularized executive privilege argument as to any individual document, he just ran to the court and demanded to be bailed out. So now he's asking the court to evaluate each document for privilege based on no rubric
"The court is supposed to go through the documents and make individualized determinations and arguments that your client hasn't?" she asks, pointing out that these are all theoretical arguments, not a defense of the claim of privilege over the White House visitor logs.
Judge Jackson says Clark has yet to point to evidence that would support the contention that these docs should be withheld over the incumbent president's determination about what is in the best interest of the country.
Judge Jackson asks why they haven't tried to do this via accommodations process.
10:50 Judge Wilkins says what if the current president engages in the accommodation process and withholds some documents — since Trump has argued that Biden just released it all without an individual determination, i.e. he didn't think hard enough.
Clark says the former president still can challenge the sitting president's considered waiver of privilege.
Judge Wilkin cites other Nixon cases (Nixon v. Sirica) which go against Clark's claim that the former president retains executive privilege.
10:54 Clark says that Trump gets the injunction first, and then he has to argue for privilege for each individual record.
Judge Wilkins: "The court didn't listen to the tapes to determine that privilege had been waived in Nixon ... they made the call on a categorical basis."
It's probably not a great thing when the closest analog to your client is always and forever Richard Nixon.
11:00 Judge Millett says she's "confused" by Clark, because even if the court agrees that they should determine that a particular document is subject to executive privilege, the incumbent president can waive it, and the incumbent gets "more points on the scoreboard" under Nixon.
"Please stop. Here's where we've been throughout this argument. ... We're stipulating that the statutory criteria have been met. ... Incumbent president wins under Nixon v GSA," she said exhaustedly. "It changes the analysis not a whit for a court to spend time determining whether a document is exec privileged."
Millett says the former president has to come forward with something to outweigh the incumbent president's determination that the documents should be released, something besides executive privilege.
11:04 Clark is trying to salvage this one, suggests that "political turmoil" might be a reason for a court to intercede and override the current president's determination that the documents should be released.
Judge Millett notes that the president never raised that at the trial level. "I've seen nothing in your briefs or arguments" making that claim with specificity re any particular documents.
11:10 Judge Wilkins: "Any privilege can be waived. Attorney-client privilege can be waived. So why is executive privilege different? ... Your argument is that the incumbent doesn't have the absolute right to waive?"
He's pointing out that Clark wants the court to treat the incumbent president's waiver as a nullity and use the same test as for regular disputes between Congress and the president.
Doug Letter, House Counsel up now.
11:10 Doug Letter says "we have one president at a time."
Judge Millett says Nixon v. GSA does give some privilege power to a former president.
Letter points out that the case found the incumbent president's decision outweighs the claims of the former.
11:15 Judge Millett asks Letter to come up with a scenario where the former president wins over the incumbent president. Letter says that maybe if the sitting president fails to decide, maybe then the former president gets to block release of presidential papers.
When pushed hard by Judge Millett, Letter says the former president could sue to say that some paper is private or is not properly characterized as a presidential record.
11:16 Letter says maybe if the sitting president is acting "so far outside the realm of what is reasonable," the former president's views might win out in court.
Judge Millett poses a hypothetical where a new president releases every single executive privileged document because he thinks his predecessor was just that bad.
Letter says that the sitting president would prevail.
11:21 Once Millett uses the words "avenge" and "release to the public," Letter sees an opening. Letter says that the interests of the US cannot be to "punish" the former president.
Judge Jackson jumps in to point out that the PRA differentiates between release to the public and release to Congress.
11:25 Judge Millett asks what if the Committees are asking for all records for revenge?
Letter doesn't have a great answer.
Judge Wilkins says this doesn't help the court determine what test to use to evaluate Trump's claim.
Letter says the current president is in the best position to determine what is in the best interest of the executive branch. The privilege belongs to the sitting executive. And here Biden has made the determination that it is in the best interest of the country to find out what happened on January 6.
11:28 Judge Jackson points out that the statute refers to a court order under an action brought by the former president.
Although, huh ... Judge Jackson seems to be suggesting that the statute might only be authorizing a suit over the Archivist's determination that an individual document is a presidential record, not a purely personal one. This would allow the court to sidestep the executive privilege claim entirely by letting them read the statute as not authorizing a suit on the privilege issue.
11:32 HUH. Doug Letter says that the provision of the statute referring to a suit by the former president relates to disclosures to the public. And this is a case about disclosures to Congress.
The problem here is that the statutory language is ambiguous.
Judge Millett makes it very clear she's not going down this road with Judge Jackson.
11:35 Letter: "The statute doesn't tell you what to do, the Constitution tells you what to do."
He's making a unitary executive argument, citing a Trump era case where SCOTUS said the sitting president has almost unfettered authority over the executive branch.
11:37 Oh, FFS. Judge Millet is making a "21" argument about "people will die" if privileged documents will be released.
Letter suggests that the 25th Amendment might be at issue in that scenario. But he also argues that presidents routinely have to make life-or-death determinations, it's part of the job.
11:43 Letter points out that the PRA, which was affirmed in Nixon v. GSA, transformed presidential records from the personal property of the man to property of the federal government. The government, i.e. the executive, should control that property.
Judge Wilkins counters that Nixon says the former president does retain some power over the documents.
Clearly Wilkins is leaning to establishing some sort of balancing test, will not just agree that the incumbent president outvotes the former president, and that's the end of the argument.
11:50 Sorry, I see from the comments that I'm getting a little weedsy. Will try to zoom out a bit. Basically, the judges are coming up with extreme hypotheticals to test the arguments, and it doesn't work well because the Presidential Records Act makes reference to court orders but specifies no standard for judges to use when issuing those orders.
11:55 Letter says there's no separation of powers issue because Congress and the executive branch are in agreement.
Wilkins keeps pointing out that because of Nixon v. GSA there is some residual executive power in the former president, and thus there is a separation of powers issue and the court must impose a balancing test.
Letter says that the incumbent president has done the balancing test. FWIW, I don't think that's a great argument.
12:01 Judge Jackson jumps in to say that, even if Judge Wilkins is right and there is a separation of powers issue, the incumbent president must almost always win.
Judge Wilkins asks if Letter is suggesting that the court can only overrule the president when he withholds documents, not when he releases them. "You want a one-way ratchet."
Letter agrees, because releasing the documents to Congress means there is no interbranch conflict, so no separation of powers issue.
And we're back to the issue of the former president having some residual executive branch power.
Judge Wilkins keeps coming back to a weird hypothetical about "four former presidents" wanting to block release to Congress, as if they add up to a whole sitting president. I don't get this hypothetical, since the papers at issue can by definition belong to only one president.
12:05 Ugghhhh, we're back to some stupid hypothetical where the Archivist or the court imposes a condition of confidentiality on Congress as a condition of turning over the records.
Letter keeps delicately pointing out that that's not how any of this goes.
Congress could sanction its own members for revealing it, but the court and the president would have no power to make it happen.
Not a great look for judges with life tenure.
12:09 Judge Wilkins is a cranky dude. That's it. That's the tweet.
(FFS, you're not going to gag congress. Those people are all fucking nuts.)
12:12 Judge Jackson tries to bring it home, points out that you only get a preliminary injunction if it looks like you'd eventually win on the merits. So, weirdass hypotheticals notwithstanding, we all know Trump is going to lose here, so does he lose now and we argue about the standard later?
12:18 Letter out. Brian Boynton, head of the DOJ Civil Division, in for the Archives.
12:20 Boynton says that Biden hasn't issued a blanket waiver of privilege, he still might claim privilege over different documents in the future.
12:22 LOL, Judge Millett is asking about President Biden's process for deciding to waive the privilege. That would itself be a process subject to executive privilege.
12:30 Judge Millett asks the question she asked before: In the absence of a rubric under the statute, how is the court supposed to weigh the former president's claim of privilege against the sitting president's waiver of it?
Boynton says Nixon gives the sitting president's determination much greater weight. The incumbent president is best situated to protect the executive branch's interest.
And we're back to Judge Jackson saying by that logic "in every situation, the incumbent will win."
Third verse, same as the first. Boynton says that's not the court's problem, seems to suggest that all the court has to do is to see if Biden's decision to waive is rational on its face, whether it has a rational basis. That's ... not going to cut it.
12:35 And Wilkins is back up with another Nixon case, says there has to be a balancing test. FWIW, it looks like in that case, President Ford didn't make a decision, unlike here where Biden has refused to assert privilege.
12:40 Judge Jackson: "Mr. Boynton, can I just say what I think I'm hearing you say in a different way, and maybe this will help us?"
Jackson suggests that there would be a separation of powers issue if the court butted in and substituted its judgment for the president's on the issue of whether to assert executive privilege.
Boynton gratefully accepts the lifeline.
12:45 Judge Millett asks Boynton to characterize the former president's interest in keeping documents secret: "What interests are they supposed to put on the table?"
Yet another gap in the rubric under Nixon and the PRA.
Trump claims he is protecting the interest of the presidency at the same time he's characterizing the January 6 Committee as a WITCH HUNT. And the law only envisions a statute which protects the interests of the USA, not the former president's hind quarters.
Yet another way in which our statutory scheme is unable to manage a lawless president.
12:56 Still here, still listening. But it's the same shit over and over. The law is a mess, and the court must presume that a statute has meaning. If Nixon stands for the proposition that the former president still retains some executive power, then it feels "wrong" to assume that he/she must always lose to the sitting president's claims.
12:57 Judge Millett just launched into a soliloquy on presidential authority as if Donald Trump was a normal president and this were a normal inquiry. Presumable Judge Jackson will remind her in chambers — as Boynton just did — that we are talking about an attack on the seat of government fomented by the sitting president.
1:03 Boynton done. Clark up on rebuttal.
1:05 Clark says it would like a two-week administrative stay pending a petition for certiorari to SCOTUS should Trump lose this case (safe bet).
1:07 And we are done. THANK HEAVEN.
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