Michael M. Santiago is a photographer.
A panel grilled Trump's lawyers over his privilege claims.
The judges were skeptical of Trump's attempt to stop the documents being turned over.
A federal judge previously rejected Trump's claim.
Lawyers for Donald Trump and the House select committee investigating the January 6 Capitol insurrection sparred in court Tuesday over issues of executive privilege hanging over the committee's probe.
The case centers on Trump's attempts to block the Biden administration from turning over documents the committee says are crucial to its examination of Trump's actions immediately before, during, and after the deadly Capitol riot. The National Archives and Records Administration was authorized to turn over the materials to Congress after the Biden White House declined to do the same.
A federal judge rejected Trump's privilege claims, saying that while the former president has the right to assert privilege, President Joe Biden is not required to honor it.
The central question in the case is what happens when Congress requests a document that could be privileged, according to Trump's defense lawyer.
The issue wasn't whether the contents of the documents are covered by executive privilege, but what happens when an incumbent president declines to assert privilege and a former president seeks to overturn that decision, according to JudgePatricia Millett.
What should we do with the dispute between a current and a former president? Millett said something.
Clark said that the question before the court was what rights a former president have with respect to executive privilege and an incumbent president.
I'm confused as to why the former president made that decision.
The argument about whether it's in the US's best interest to reveal presidential records is boiled down to who decides, according to Judge Jackson. Is the current occupant of the White House interested in the confidentiality of the documents?
Jackson pointed out that House lawyers couldn't think of any precedent in which a former president had final say on issues related to current interactions between branches of government. The judge asked Trump's lawyers if they knew of any circumstance in which he could make that call.
Clark pointed to a federal statute that allows an outgoing president to specify time periods in which the courts and the public are barred from obtaining information contained in some presidential records.
Jackson said that the statute was related to the release of documents to the public. There is an exception that says that a former president does not have the right to assert privilege when Congress requests their records.
Congress needs to demonstrate a legislative need to get documents that are not available, according to Clark.
Jackson said he was confused as to why the former president got to make that decision. The exception applies to the archivist in that he decides if the request is in line with the requirements of the request and if so, the incumbent president decides that this is conduct of the business. Why is the former president the one who decides if the statutory criteria for appropriate legislative requests are satisfied?
Judges are skeptical of Trump's argument.
Clark and Millett sparred over hypothetical scenarios in which an incumbent and their predecessor might disagree on whether information should be released to the public or another branch of government.
Clark was asked if the former president could block access to documents from a previous administration for national security reasons and if the courts could intervene.
Clark couldn't imagine a circumstance in which such documents wouldn't be reviewed.
I can't imagine a situation where something that was time-sensitive would not be released to the public, or that it wouldn't be released to another branch outside of the White House.
"You can imagine that and I can imagine other hypotheticals as well," Millett said.
Jackson said she wasn't sure if Trump had the right to bring a lawsuit despite Supreme Court precedent.
The Supreme Court decided in Nixon v. GSA that if the public has the right to view documents that a former president deems "confidential", the former president has some rights over them.
The Presidential Records Act gives a former president the right to file a legal challenge. If Trump's position was correct, Nixon should have won the Supreme Court, according to Jackson.
She asked Clark if the courts should give the same deference to former presidents.
Clark said that there needs to be an "objective test." The Supreme Court ruled in Nixon v. GSA that the rights of a former president are not as important as those of an incumbent.
Clark conceded that the decisions of an incumbent are more important than those of a predecessor.
The judges noted that Trump's team hasn't articulated a specific need for the court to determine whether his assertion of executive privilege outweighs Biden's decision to turn over the documents.
Judge Robert Wilkins pointed out that Trump wanted the court to comb through the documents to determine if they are subject to privilege. Wilkins said that his argument was inconsistent with the precedent.
The panel questioned why a court has jurisdiction over Trump's dispute with Biden, as well as the overarching argument that a former president can prevail over an incumbent in such a scenario.
There is no separation of power claim that a former president can make.
When the government was over, Millett asked House counsel Douglas Letter to explain a scenario in which a former president could go to court to stop an incumbent from releasing documents.
Letter said that it was difficult to come up with a scenario in which the incumbent wouldn't prevail, and that they could imagine something " extremely strange" if they had to.
He noted that in Nixon v. GSA, former President Richard Nixon was asserting privilege over private property. Letter said that Trump has made it clear that he's only functioning as the former president and not as a private citizen.
The letter rejected Trump's claim that the dispute involves two branches of government.
There is no fight between the branches. The president made a decision that he explained about the important interests of the American people in having the select committee get to the truth here, Letter said. There is no separation of powers claim that a former president can make.
Business Insider has an original article.
