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Judges grill Trump lawyers over privilege claims

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Supporters of U.S. President Donald Trump gather at the west entrance of the Capitol during a “Stop the Steal” protest outside of the Capitol building in Washington D.C. January 6, 2021.

Stephanie Keith | Reuters

A skeptical-sounding panel of federal judges grilled lawyers for former President Donald Trump on Tuesday about his bid to block the release of White House communications and other records to the lawmakers investigating the deadly Capitol invasion.

Trump had filed the lawsuit against the House select committee that seeks those documents as part of its probe of the riot, when hundreds of Trump’s supporters stormed the Capitol and temporarily stopped Congress from confirming President Joe Biden’s victory in the 2020 election.

Lawyers for Trump argue some of those records should be protected by executive privilege, the doctrine that allows some executive branch communications to be kept confidential. They argue that Trump’s assertion of privilege should outweigh the decision of Biden, the incumbent president, to waive privilege over the documents.

The lawyers have asked the appeals court to reverse the opinion of a federal judge, who ruled that the National Archives is allowed to hand the disputed records over to the select committee.

“This all boils down to who decides,” Judge Ketanji Jackson said during oral arguments in the U.S. Court of Appeals for the District of Columbia. “Who decides when it’s in the best interest of the United States to disclose presidential records? Is it the current occupant of the White House or the former?”

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The judges spent more than 90 minutes questioning Trump’s attorneys, Jesse Binnall and Justin Clark, about why the former president’s privilege claims should outweighs the incumbent’s — as well as whether the court even has jurisdiction to hear the case. The judges frequently interrupted Trump’s lawyers, and at times sounded frustrated with the answers they heard.

After Clark argued that, on some issues, the former president will have a better grasp of the context and issues surrounding a certain set of documents, Jackson shot back, “the incumbent president will know better the needs of the executive branch” and its relationship with Congress.

“Why, then, would it be that the court should preference the former president’s concerns about confidentiality, even though he may have the superior knowledge,” the judge asked, when “we’re in a different world today because we have a different president who’s taking into account not only confidentiality but other things?”

The arguments, which were still ongoing after more than two hours late Tuesday morning, were heard by a panel of three judges on the D.C. circuit that was seen as an unlucky draw for Trump. Two of the judges, Robert Wilkins and Patricia Millett, were appointed by former President Barack Obama, while Jackson was appointed by Biden.

Trump’s efforts to withhold the disputed documents came as the Jan. 6 select committee ratchets up the pressure on the former president’s associates to cooperate with its probe of the Capitol riot. One Trump ally, former White House advisor Steve Bannon, was held in contempt by the House and indicted on charges stemming from his refusal to comply with the committee’s subpoena for his testimony. He has pleaded not guilty.

The panel is making similar moves against former Department of Justice official Jeffrey Clark, with members set to vote Wednesday evening to recommend the House hold Clark in contempt. Members of the committee have threatened to do the same for Trump’s White House chief of staff Mark Meadows.


Supporters of U.S. President Donald Trump gather at the west entrance of the Capitol during a “Stop the Steal” protest outside of the Capitol building in Washington D.C. January 6, 2021.

Stephanie Keith | Reuters

A skeptical-sounding panel of federal judges grilled lawyers for former President Donald Trump on Tuesday about his bid to block the release of White House communications and other records to the lawmakers investigating the deadly Capitol invasion.

Trump had filed the lawsuit against the House select committee that seeks those documents as part of its probe of the riot, when hundreds of Trump’s supporters stormed the Capitol and temporarily stopped Congress from confirming President Joe Biden’s victory in the 2020 election.

Lawyers for Trump argue some of those records should be protected by executive privilege, the doctrine that allows some executive branch communications to be kept confidential. They argue that Trump’s assertion of privilege should outweigh the decision of Biden, the incumbent president, to waive privilege over the documents.

The lawyers have asked the appeals court to reverse the opinion of a federal judge, who ruled that the National Archives is allowed to hand the disputed records over to the select committee.

“This all boils down to who decides,” Judge Ketanji Jackson said during oral arguments in the U.S. Court of Appeals for the District of Columbia. “Who decides when it’s in the best interest of the United States to disclose presidential records? Is it the current occupant of the White House or the former?”

CNBC Politics

Read more of CNBC’s politics coverage:

The judges spent more than 90 minutes questioning Trump’s attorneys, Jesse Binnall and Justin Clark, about why the former president’s privilege claims should outweighs the incumbent’s — as well as whether the court even has jurisdiction to hear the case. The judges frequently interrupted Trump’s lawyers, and at times sounded frustrated with the answers they heard.

After Clark argued that, on some issues, the former president will have a better grasp of the context and issues surrounding a certain set of documents, Jackson shot back, “the incumbent president will know better the needs of the executive branch” and its relationship with Congress.

“Why, then, would it be that the court should preference the former president’s concerns about confidentiality, even though he may have the superior knowledge,” the judge asked, when “we’re in a different world today because we have a different president who’s taking into account not only confidentiality but other things?”

The arguments, which were still ongoing after more than two hours late Tuesday morning, were heard by a panel of three judges on the D.C. circuit that was seen as an unlucky draw for Trump. Two of the judges, Robert Wilkins and Patricia Millett, were appointed by former President Barack Obama, while Jackson was appointed by Biden.

Trump’s efforts to withhold the disputed documents came as the Jan. 6 select committee ratchets up the pressure on the former president’s associates to cooperate with its probe of the Capitol riot. One Trump ally, former White House advisor Steve Bannon, was held in contempt by the House and indicted on charges stemming from his refusal to comply with the committee’s subpoena for his testimony. He has pleaded not guilty.

The panel is making similar moves against former Department of Justice official Jeffrey Clark, with members set to vote Wednesday evening to recommend the House hold Clark in contempt. Members of the committee have threatened to do the same for Trump’s White House chief of staff Mark Meadows.

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