The arguments are likely to be an uphill battle for the former President. The Biden administration and the House are aligned against him in wanting transparency about communications in the West Wing as Trump sought to overturn the 2020 election result and his supporters raided the Capitol. Trump lost his first round in court in the case, more quickly and resoundingly than his losses when he tried to claim broad protections from investigations while he was President.
Yet by raising major, unsettled questions about the power of former presidents to control information from their time in office, the case appears to be on a path to the Supreme Court.
Trump has argued he should be able to assert executive privilege over records such as call logs and the handwritten notes of his top advisers. The Biden administration has declined to keep January 6-related White House documents confidential.
The National Archives was set to begin turning over records this month to Congress, but Trump’s lawsuit has put that on hold, potentially slowing parts of the House committee’s investigation. Trump has also warned the appeals court against giving Congress too much power.
The House said it needs the more than 700 pages of disputed Trump White House records, from close advisers including then-chief of staff Mark Meadows and press secretary Kayleigh McEnany, so it can learn enough about Trump’s efforts for Congress to make laws that could protect future elections. The Biden administration has endorsed the House learning as much as it can about Trump and the attempted coup.
Judge Tanya Chutkan of the DC District Court previously smacked down all of Trump’s arguments in the case. “Presidents are not kings, and Plaintiff is not President,” she wrote in her opinion earlier this month.
Presidential privilege “exists for the benefit of the Republic, not any individual,” Chutkan also wrote.
Now the DC Circuit Court of Appeals could rule quickly. The panel of appellate judges — Patricia Millett, Robert Wilkins and Ketanji Brown Jackson — are all appointed by Democrats and moved fast to schedule the case for argument, bringing it before them only three weeks after Chutkan ruled. Jackson is already known to oppose Trump’s broad executive privilege claims, having written years ago that “presidents are not kings” when Trump tried to block a congressional subpoena of his former White House counsel, Don McGahn.
So far the panel has shown an inkling of doubt. Last week, they told Trump, the House and the Biden administration to be prepared to address questions of whether the court can even decide a case like this — in addition to the arguments the parties are already prepared to make.
Wilkins also has been a strong voice on recent politically charged cases. He wrote a strong dissent against the dismissal of former Trump national security adviser Michael Flynn’s guilty plea in 2020 and authored the opinion that set the standard for the jailing of Capitol riot defendants before their trials.
Four collections of records from the Trump White House that have been reviewed by the National Archives are poised to go to the House committee if Trump ultimately loses the appeal. Witnesses subpoenaed by the House, including Meadows himself, have used the ongoing court case as a shield to skirt testifying.
Currently, the appeals court has put a temporary hold on the National Archives releasing the records Trump contests, pending its issuance of another order.