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Appeals court weighs Trump's push to block Jan. 6 records

Todd Ruger, CQ-Roll Call on

Published in News & Features

WASHINGTON — A federal appeals court seemed likely Tuesday to deny Donald Trump’s request to block some White House records from going to the House select committee investigating the Jan. 6 attack on the Capitol, but it struggled with how judges should consider a former president’s contention that records should be protected from disclosure.

A three-judge panel of the U.S. Court of Appeals for the District of Columbia Circuit heard more than three hours of oral arguments in Trump’s lawsuit to keep documents from the National Archives and Records Administration from going to the House.

Trump has asserted executive privilege over the documents and argues that the disclosure would hurt the office of the president by compromising the ability of presidents to get full and frank advice from advisers without worry that it will become public soon and get used as a political weapon.

But President Joe Biden disagreed with that assessment for at least the first three batches of records in the House panel’s request, in a determination that the public interest in the House probe outweighs the confidentiality concerns underlying executive privilege.

The D.C. Circuit panel has paused the disclosure of records while it considers what to do, on an expedited timeline that heightens expectations that the panel would rule quickly thereafter. Whichever side does not prevail at the appeals court is expected to appeal the case to the Supreme Court.

The questions from the three judges Tuesday made it appear that they read a federal law to mean that Trump and other former presidents can go to court to challenge a decision on executive privilege on White House records from their presidency.


But like so many legal questions related to the Trump presidency, courts have never decided how to referee such a dispute between a current and former president.

At one point, Judge Robert L. Wilkins told House general counsel Doug Letter that whether or not the incumbent president would prevail in this case “doesn’t really tell us how a court should determine whether the incumbent president would prevail.”

“I mean, we don’t just flip a coin or draw straws or something. What tests are we supposed to use?” Wilkins said.

Letter responded that the current president is in the best position by far to determine the interests of the executive branch, and “it would be astonishing for this court to override the current president and Congress.”


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