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The D.C. Circuit Takes on Executive Privilege

Scott R. Anderson, Quinta Jurecic, Jonathan Shaub, Benjamin Wittes
Tuesday, November 30, 2021, 7:07 PM

The oral argument took hours. The result is not hard to predict.

A photo of the E. Barrett Prettyman United States Court House, which houses the U.S. Court of Appeals for the District of Columbia Circuit. (NCinDC,; CC BY-ND 2.0,

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Around about the beginning of the fourth hour of the U.S. Court of Appeals for the D.C. Circuit’s hearing in Trump v. Thomson on Tuesday, the members of the three-judge panel that heard the case began presaging their long digressions with the phrase, “In the interests of time.” 

The court’s online calendar had coyly budgeted 20 minutes for each side, and while nobody ever expects the D.C. Circuit to stick to such schedules, the judges—Patricia Millett, Robert Wilkins, and Ketanji Brown Jackson—suddenly seemed to be realizing that the hearing, like former President Trump’s intransigence in producing documents or witnesses, had dragged on for quite a while. They repeatedly recognized the need to “fast track” the case given the time pressures on the Jan. 6 committee to complete its work. But, for the argument itself, the court seemed content to have a leisurely, meandering conversation about every conceivable issue in the case—along with some it does not present at all.

The question presented in the case—what happens when the current president and a former president cannot agree about a claim of executive privilege—is not actually all that complicated, though it’s admittedly more so than a lot of commentators have acknowledged. It certainly does not warrant three-and-half-hour of circular and repetitive oral argument. That said, the hearing did offer a reasonably clear view of what’s going to happen next in Trump’s efforts to prevent the National Archive from turning over a pile of White House records to the January 6 committee.

The former president is going to lose. By the end of the argument, even his lawyers plainly understood this. During their rebuttal time, they were openly negotiating with the judges over how long the administrative stay the court had imposed would remain in effect when they lost. The argument dragged on, and as Millett joked to one of the lawyers three hours in, “I hope you didn’t have lunch plans.” 

The oral argument is available in its entirety here.

Given the length of the argument and its degree of repetition, the following summary takes place at a comparatively high altitude. 



In August 2021, the House Jan. 6 select committee issued a request to the National Archives (NARA) under the Presidential Records Act (PRA) for a wide range of Trump administration documents and communications regarding the counting of the 2020 electoral vote, the potential for violence or demonstrations on Jan. 6, and the events of Jan. 6 itself. The request, which built on previous solicitations from other congressional committees investigating Jan. 6, was broad in scope—a representative bullet point asked NARA to provide “all documents and communications related to efforts, plans, or proposals to contest the 2020 Presidential election results” from April 2020 to January 2021.” As required by the PRA, NARA notified Trump of its intention to transmit an initial tranche of these materials to the committee.

On Oct. 8, President Biden’s White House counsel informed NARA that Biden would not invoke executive privilege over the first tranche documents, on the grounds that “[t]he constitutional protections of executive privilege should not be used to shield, from Congress or the public, information that reflects a clear and apparent effort to subvert the Constitution itself.” 

But Trump wrote to NARA, formally asserting executive privilege over material in the first tranche. He also made a protective assertion of privilege over the remainder of the documents, preserving his ability to formally assert the privilege after reviewing the material in full. The White House counsel, however, wrote in a letter to NARA that “President Biden does not uphold the former President’s assertion of privilege,” and NARA informed Trump that—after “consultation with the Counsel to the President and the Acting Assistant Attorney General for the Office of Legal Counsel, and as instructed by President Biden”—it would transmit the documents over which Trump had claimed privilege to the committee on Nov. 12, “absent any intervening court order.” This procedure followed the steps set out in the PRA to ensure a former president’s views were heard and considered but to give the final say to the incumbent president.

Trump sued. In a complaint filed on Oct. 18, a month before NARA’s deadline, the former president sought a declaratory judgment that the committee’s requests were invalid and unenforceable, or, alternatively, a declaration of the unconstitutionality of the Presidential Records Act; an injunction preventing the committee and its chairman, Rep. Bennie Thompson, from enforcing the committee’s requests; an injunction preventing NARA and the archivist of the United States from providing the materials to the committee; or, in place of the latter two injunctions, a preliminary injunction pausing any action by the defendants until Trump “had sufficient opportunity to conduct a comprehensive review of all records the Archivist intends to produce before any presidential record is produced to the Committee.” He later moved for a preliminary injunction “prohibiting Defendants from enforcing or complying with the challenged requests until this Court resolves Plaintiff’s challenge to those requests.” Trump’s lawsuit continued a tactic used repeatedly by the former president during his time in office: insert himself in the middle of a congressional request for information and use the courts to grind the process to a halt.

On Nov. 9, Judge Tanya Chutkan of the U.S. District Court for the District of Columbia denied Trump's requests, reasoning that Trump had met none of the factors required for the issuance of a preliminary injunction: the former president was not likely to succeed on the merits or suffer irreparable harm, Judge Chutkan wrote, and the balance of equities and public interest cut against granting Trump the relief he sought. Trump quickly appealed.

Complementing the parties’ briefing were a number of amicus briefs filed by third parties, all of whom support the positions advanced by NARA and the select committee, though none participated in oral argument. Separate briefs submitted by groups of former White House attorneys, former Justice Department officials, former members of Congress, and former federal, state, and local officials seek to bolster the case that the select committee has the authority to make the document request in question, counter the broad vision of former presidents’ ability to assert executive privilege advanced by Trump, and underscore the public interest in seeing the select committee’s document request fulfilled in a timely manner. A fifth brief co-authored by several advocacy organizations focused on government transparency and scholars who work on related separation of powers questions—including notable congressional expert Louis Fisher and executive privilege scholar Mark Rozell—rejects Trump’s invocation of Nixon v. GSA and argues that Congress’s 2014 revision of the Presidential Records Act effectively gives the incumbent president the sole discretion whether to uphold a claim of executive privilege by a former president. 


Trump’s Argument

The argument on Nov. 30 begins with Trump lawyer Jesse Binnall arguing certain jurisdictional matters the court had asked the parties to discuss. Neither the House of Representatives nor the Justice Department had focused on jurisdictional issues in their briefs, but the court itself apparently had some concerns on this score. On Nov. 23, the court ordered the parties to come to arguments prepared to discuss the following question: 

Does the provision in the Presidential Records Act providing that the Archivist’s “determination whether access to a Presidential record . . . shall be restricted . . . shall not be subject to judicial review, except as provided in subsection (e) of this section,” 44 U.S.C. § 2204(b)(3) (citing 44 U.S.C. § 2204(e)), implicate this court’s or the district court’s jurisdiction in this case? . . . If so, what effect, if any, do §§ 2204(b)(3) and 2204(e) have on the subject matter jurisdiction of the district court to adjudicate any of the requests listed in the Complaint’s Claim for Relief?

Binnall’s argument unsurprisingly amounts to an insistence that the court does, in fact, have jurisdiction to hear the case. He argues that the quoted language,that seems to limit the court’s jurisdiction to decisions by the archivist applies only to challenges by third parties, not former presidents. The statute explicitly holds that “The United States District Court for the District of Columbia shall have jurisdiction over any action initiated by the former President asserting that a determination made by the Archivist violates the former President’s rights or privileges,” and it in other ways seems to contemplate litigation of precisely this type. His argument on the jurisdictional points goes on for a while, but it is largely not resisted by opposing counsel. Judge Jackson seems interested in this question—and appears to suggest the panel may lack jurisdiction over Trump’s claims that the committee has exceeded its authority—but the judges do not press counsel for either the House or the Archives to argue that the courtlacks jurisdiction. Judge Millett makes it clear she thinks the statute’s plain language provides jurisdiction, and thus it is probably best to assume that the court will not ultimately resolve the case on jurisdictional grounds. 

About twenty minutes in, Binnall turns things over to Justin R. Clark to handle the merits portion of the argument, which once again centers on the three factors governing whether the court should issue a preliminary injunction: the likelihood of success on the merits, the risk that the moving party will suffer irreparable harm, and the balance of equities among the parties. Trump’s briefing on appeal had reprised and to some degree refined the arguments he put before the district court. 

His strongest arguments remain on the latter two factors regarding a possible preliminary injunction.He focuses on the common sense points that any disclosure of documents cannot be rolled back if the courts were to later rule in his favor, whereas NARA will still be able to fulfill the committee’s document request a few weeks or months down the line whenever judicial proceedings conclude. But it’s his arguments on the likelihood of success on the merits that received the most attention.

Trump’s first line of argument is once again a frontal assault on the select committee’s authority to make the disputed document request in the first place. Citing the Supreme Court’s 2020 decision in Mazars v. Trump, Trump argues that congressional requests for sensitive executive branch documents are only constitutional where they are narrowly tailored to information shown to be necessary to advance a valid legislative purpose and are not intended to leverage “institutional advantage” that threatens the separation of powers. By contrast, the committee’s request is, in his view, not only devoid of any apparent legislative purpose but deliberately designed to “effectively intimidate and harass” him through “sweeping” requests for internal executive branch records only tangentially related to the events of Jan. 6—all characteristics that would make it unconstitutional under Mazars. Separately, Trump also questions whether the House’s request is consistent with the Presidential Records Act and related regulations, which only authorize requests “needed for the conduct of [congressional or committee] business[,]” or the House resolution setting out the select committee’s mandate, which does not expressly authorizes it to request executive branch documents. For all these reasons, Trump argues that the committee’s request should be rejected as invalid, regardless of whatever executive privilege may or may not apply. 

And, if these arguments fail, Trump also maintains that at least some of the records he requested from NARA are protected by executive privilege. Specifically, Trump argues that, under the Supreme Court’s 1977 holding in Nixon v. Administrator of General Services, former presidents preserve the constitutional authority to assert executive privilege in order to protect confidential communications from their time in office. The former president purports to have invoked the privilege in relation to many of the records requested by the committee. Per Trump, incumbent presidents cannot waive these assertions of executive privilege, as President Biden has done, and in so far as the Presidential Records Act asserts the contrary it is unconstitutional. Instead, Trump maintains, “[a] dispute between incumbent and former Presidents regarding the privileged nature of the latter’s presidential records is subject to judicial review”—which, in this case, should mean “review on a document-by-document basis” as “[e]ach record in dispute raises its own unique constitutional question.” Failing to respect this authority of former presidents, meanwhile, risks damaging the separation of powers irreparably by chilling current and future presidents from engaging in frank and open discussion with their policy advisors.

It is this later point that occupies almost the entirety of Clark’s oral argument. While he stands by the more bombastic claims about the committee not having a legitimate legislative purpose, his argument is decidedly less bombastic than the brief. He plants his flag on the simple notion that Nixon v. GSA recognizes the right of a former president to assert executive privilege and it necessarily follows from that the courts must have the ability to adjudicate such a claim. The judges all appear to agree with Clark on the matter of executive privilege—and they later engage with counsel for the House at length on this issue—but it is the question of adjudication on which he struggles to find any common ground with the judges.

On its own terms, this argument is better than a lot of commentators acknowledge. There’s a great deal of derision of Trump’s claim that he, as a former president, has some access to executive privilege. But the truth of the matter is that there is an on-point Supreme Court decision that says exactly that. 

The trouble for Clark, and for Trump, is that Nixon v. GSA doesn’t define the parameters of a former president’s privilege. And to the extent it says anything about what happens when a former president and current president disagree, it suggests that the current president’s view carries greater weight. Moreover, that case arose in an entirely different posture—as a facial challenge to a law—and it did not provide any guidance about what should happen if a former president asserts privilege over particular documents, or how that assertion should be considered, if at all, if the incumbent has decided privilege does not apply.

So, Clark runs into a bit of a buzz saw with three judges who are hung up on the question of why former President Trump thinks his executive privilege prevails over current President Biden’s. All privileges can be waived, after all, and the current president has declined to assert the privilege here. Why isn’t that the end of the matter? Clark’s efforts to answer this question go on at great length, but they don’t get very far. Assuming there’s jurisdiction, the judges keep asking, assuming a former president can assert the privilege, and assuming it’s validly asserted here and the material is legitimately covered by the privilege, why can’t Biden waive the privilege? And why isn’t Biden’s waiver the end of the matter from the court’s point of view? One of the most effective questions (which the judges repeatedly pose by concocting lengthy, complicated hypothetical situations) asks Clark to contemplate the consequences of recognizing a former president’s authority to run to the judiciary any time a current president needs access to past presidential records. What if the current president is negotiating with a foreign country and needs to know what happened with the last president? What if the current president is negotiating with Congress and engaged in an accommodation process over a sensitive matter? Is Clark really suggesting that the courts can be brought in to disrupt and review these core presidential functions at the whim of a former president? And not only that, but that the former president actually gets to decide whether the incumbent can use that historical information? Clark’s argument goes on for an hour, but he never makes a serious dent in this point. 


The House and NARA Arguments

Next up is Douglas Letter, general counsel of the House of Representatives, on behalf of the Jan. 6 committee. Both NARA and the House filed briefs and participated in the oral argument. Letter goes first. 

The committee focused the majority of its brief on the question of whether the committee’s requests fulfill a valid legislative purpose. The committee argues that under McGrain v. Daugherty, the question is not—as Trump frames it—whether the committee has already identified possible legislation that could result from its investigation, but rather whether the subject of the investigation is “one on which legislation could be had.” Likewise, the committee asserts that the four-factor Mazars test does not apply here, but nevertheless argues that its request passes muster under Mazars: the investigation “warrants” the request for the president’s papers; the request is tailored to what is “reasonably necessary”; Congress has supplied “detailed and substantial” evidence of its legislative purpose; and, given Biden’s directive to NARA to comply with the committee’s request, production of the documents will not burden the Office of the President. Separately, whatever interest in confidentiality Trump might claim, this is outweighed by the fact that “the records at issue in this case are crucial to the Select Committee’s ability to carry out its Article I legislative and oversight functions.” On this matter, the committee notes, “The political branches are ... united in their conclusion.”

In his argument, however, Letter concerns himself largely with the executive privilege question. Despite being pressed by the judges, Letter refuses to take any definitive stand on the ability of a former president to stop the release of documents in these circumstances under the PRA and the Constitution. Specifically, he insists that the majority of disputes between the incumbent and a former president will be resolved in favor of the incumbent—but he willingly acknowledges that it may be possible to concoct hypotheticals which would go the other way. He struggles to come up with any good example on this point, however, and the judges chide him at times for changing their questions rather than answering them directly.  

He then goes on a long jag to try to distinguish Nixon v. GSA, arguing that in that case, Nixon had an actual property right in the presidential papers the government was attempting to seize. Here, Letter contends, there is nothing of the kind. He runs into trouble with the panel here, which pushes back on this narrow reading of GSA. But rather than retreat, Letter takes a definitive stand that Nixon v. GSA did not involve a separation-of-powers claim. 

He is again met quickly with skepticism by the judges, all three of whom clearly understand GSA to provide a former president some authority to assert executive privilege. Letter presses the point that there is no separation of powers issue in this case, because the House and the incumbent president do not disagree. Both believe the material should be turned over to the committee. The only argument is with the former president, who cannot control the privilege in the face of the incumbent president’s disagreement. Again, though, the panel finds this argument counter to GSA, and the judges seem more interested in how to evaluate the former president’s claim in this specific context. Here, Letter makes more headway in retreating to the position that even if a former president has some constitutional and statutory authority to assert privilege and to file a suit to protect that assertion, the incumbent president’s decision that privilege is not appropriate takes priority over the former president’s claim.

Finally, it’s Brian Boynton’s turn. Boyton, acting chief of the Justice Department’s Civil Division, is representing NARA. His is by far the cleanest argument of the day. The “incumbent President’s views about whether to assert the presidential communications privilege [must] be afforded greater weight than those of the former President,” Boynton had argued in his brief. The executive’s response to a congressional request for information raises constitutional issues regarding separation of powers, and it is the responsibility of the president currently in office to navigate that dynamic and “evaluate whether an assertion of executive privilege will further or diminish the Executive Branch’s interests in any given circumstance.” While there might be circumstances in which “a court might justifiably conclude that a sitting President impermissibly declined to assert executive privilege,” this case does not present them, the brief argues. Rather, Biden carried out “a careful assessment of the Executive Branch’s interests in providing Congress with access to the records at issue”—and Trump’s “effort to dismiss that decision as driven by politics ignores the magnitude of the events of January 6 and the overriding need for a national reckoning to ensure that nothing similar ever happens again.”

NARA also defends the authority of the committee to request the documents, writing that the “Supreme Court has held that Congress has an implicit but limited power to investigate” but arguing that the committee’s probe is within the scope of the required legitimate legislative purpose. And though Trump claims that the document request is overbroad, this should not be of concern: “President Biden has concluded that responding to the Committee’s request will not unduly interfere with the functions of the Executive Branch.”

Now at oral argument, Boynton argues that the court need not decide whether there is ever a circumstance in which a former president can control the privilege in the face of a contrary action by an incumbent president. If such a case exists, this one is not it. He provides the court a simple rule of decision for this case, one that recognizes GSA but also prioritizes the current president’s facially valid decision making process on executive privilege. That rule focuses on Biden’t waiver of the privilege: Yes, Trump can assert the privilege, but the incumbent president can waive it. To the extent there is conflict between the two, there may be situations in which courts have to adjudicate that conflict, but this case doesn’t raise that question, because Biden’s action is so clearly reasonable.

Boynton seems to prefer that the court decide the narrow matter without getting into the myriad what-ifs that have been wafting about during the previous three hours of argument, but Judge Millett pushes him on what the test would be if the court actually had to review a current president’s determination on executive privilege because of a challenge from a former president. Boyton here gets effectively backed into precisely the discussion of judicial review he wishes to avoid. He insists that the standard should be one of extreme deference to the current president, if there is review at all.  

After a brief rebuttal argument by Clark, the argument is finally done. 

The judges have spent hours trying to get Letter and Boynton to either take that definitive position—that the incumbent’s decision prevails under the current statutory scheme and GSA—or explain when it would not be true. Some of the judges seemed to think it might be the cleaner approach. But both Letter and Boynton resisted it, though they could not really come up with a situation that would disprove it. And Clark, Trump’s lawyer, had no effective response to that more straightforward position. It would not be surprising to see the panel adopt a more definitive position about the authority of the incumbent president—Judge Jackson, in particular, seemed to be considering doing so. But it seems more likely that the court, “in the interests of time,” will issue a narrower decision that rejects Trump’s claims on the specific facts of this case and leaves the harder questions for another day.


Scott R. Anderson is a fellow in Governance Studies at the Brookings Institution and a Senior Fellow in the National Security Law Program at Columbia Law School. He previously served as an Attorney-Adviser in the Office of the Legal Adviser at the U.S. Department of State and as the legal advisor for the U.S. Embassy in Baghdad, Iraq.
Quinta Jurecic is a fellow in Governance Studies at the Brookings Institution and a senior editor at Lawfare. She previously served as Lawfare's managing editor and as an editorial writer for the Washington Post.
Jonathan Shaub is a contributing editor to Lawfare and an assistant professor of Law at the University of Kentucky J. David Rosenberg College of Law. He formerly served in the U.S. Department of Justice as an attorney-adviser in the Office of Legal Counsel and as a Bristow Fellow in the Solicitor General's Office.
Benjamin Wittes is editor in chief of Lawfare and a Senior Fellow in Governance Studies at the Brookings Institution. He is the author of several books.

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