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Over the course of a three hour and 40 minute hearing Tuesday, the judges expressed skepticism of Trump’s claims, as they grappled with the question of what role courts should play in disputes when an incumbent president has declined to assert an executive privilege claim that a former president seeks to assert.
“This all boils down to who decides. Who decides when it is in the best interest of the United States to disclose presidential records? Is it the current occupant of the White House or the former?” said Judge Ketanji Brown Jackson of the DC Circuit Court of Appeals.
The Trump team was battered with tough questions from the three judges, who signaled that they were not interested in doing document-by-document review of the records Trump says should be withheld. However, the judges also grilled lawyers for the House and President Joe Biden — who are in agreement that the documents should be disclosed — about scenarios where an assertion of privilege from a former president could trump a waiver of that privilege from the incumbent.
“We don’t just flip a coin or draw straws or something. What test are we supposed to use?” Judge Robert Wilkins asked a lawyer representing the House.
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…
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Source : cnn
