A federal appeals court on Tuesday appeared wary of former President TrumpDonald TrumpWendy Sherman takes leading role as Biden's 'hard-nosed' Russia negotiator Senate needs to confirm Deborah Lipstadt as antisemitism envoy — Now Former acting Defense secretary under Trump met with Jan. 6 committee: report MORE's lawsuit to block the House select committee investigating the Jan. 6 Capitol riot from obtaining voluminous tranches of documents from his White House.
A three-judge panel for the D.C. Circuit Court of Appeals grilled Trump's lawyers during a hearing that lasted more than three hours on Tuesday, a sign that the former president will likely lose the latest round in the case.
Judge Patricia Millett said that she believes "the burden is on the former president to come forward with some reason" with enough weight to back up his claims of executive privilege and counter President BidenJoe BidenCarville advises Democrats to 'quit being a whiny party' Wendy Sherman takes leading role as Biden's 'hard-nosed' Russia negotiator Sullivan: 'It's too soon to tell' if Texas synagogue hostage situation part of broader extremist threat MORE's decision to waive that privilege.
"The former president's going to have to come back with some interest, something that's missed in that calculation, some supervening interest, and it won't be enough to go, 'See, I told you it was an executive privilege document.' You're going to have to come up with something more powerful that's going to outweigh the incumbent president's decision to waive executive privilege," said Millett, an appointee of former President ObamaBarack Hussein ObamaNew year brings more liberated Joe Biden After the loss of three giants of conservation, Biden must pick up the mantle Kyrsten Sinema's courage, Washington hypocrisy and the politics of rage MORE.
Justin Clark, one of the attorneys representing Trump in the case, responded that the stakes in the case posed "constitutional harm to the executive branch"
Trump sued last month to block the National Archives from complying with the select committee's expansive records request, citing executive privilege over the internal communications with his advisers and top officials.
A district court judge quickly rejected his lawsuit, ruling that Trump, as a former president, has little authority to prevent the current president from waiving executive privilege over the records held by the National Archives.
The case is presenting the courts with an unprecedented scenario in which a former president is challenging a current president's privilege waiver. At issue in the case is whether Trump has the authority to prevent the documents from being handed over, even though they are in the custody of an executive branch agency.
The judges seemed to struggle to come up with any scenario where a former president could interfere with the actions of a sitting administration.
"We have one president, we have one president at a time under our Constitution," Millett said. "And the incumbent president has said, has made the judgment and is best positioned, as the Supreme Court has told us, to make that call as to the interests of the executive branch."
While the Supreme Court has ruled that former presidents have some authority to assert executive privilege, the scope of that power is largely unsettled.
The 1978 Presidential Records Act dictates the circumstances under which a recently departed president's documents can be accessed.
The law gives former presidents the ability to challenge the archives' determinations over the release of their records, but the three D.C. Circuit judges appeared frustrated on Tuesday that there is little guidance on how courts should handle such lawsuits.
"It doesn't tell us what to do," said Judge Ketanji Brown Jackson, who was appointed by Biden and also appeared unwilling to accept Trump's arguments.
Clark argued that when Congress was creating the law, it debated how to avoid instances "where the archivist could be susceptible to possible pressure from the incumbent president to release embarrassing and inappropriate material concerning a predecessor or rival," saying that the lawmakers' intent behind the law was relevant in Trump's case.
Douglas Letter, the House's general counsel, told the judges that the courts should defer to the sitting president's determination on weighing executive privilege instead of trying to come up with a balancing test that weighs the interests of the various parties.
"We have one president, that one president is in charge of the executive branch, that one president has done the balancing," Letter said. "And that president has made the balance and part of what he said is, the need here is extremely pressing. It's so great, that executive privilege is not appropriate here."
Brian Boynton, an acting assistant attorney general in the Justice Department's Civil Division who is representing the Biden administration, also argued that if the court felt the need to weigh Trump's claims of executive privilege against the current president's waiver, it would have to give greater weight to the latter.
"I recommend that the court review deferentially the incumbent's decision that it is in the interest of the United States not to assert privilege," Boynton said. "I think that would be an appropriate test, if the court were to determine that some test had to apply here."
The case has progressed through the courts at a rapid pace, and while the judges on Tuesday acknowledged the urgency behind the select committee's investigation, they did not indicate when they might issue a ruling.
Updated 2:12 p.m.