A lawyer for former President Donald Trump on Tuesday asked an appeals court to keep records about his conversations and actions before and during the deadly January 6 Capitol riot by a mob of his supporters away from congressional investigators.
The Court of Appeals for the District of Columbia Circuit heard oral arguments in Trump's appeal of a judge's decision that the White House records should be released to a congressional committee.
At the start of the hearing, which is ongoing, the three judges on the panel questioned Trump lawyer Jesse Binnall over whether courts even have jurisdiction to hear the former president's claims.
"All three branches of government have acknowledged there is a right of former presidents to challenge the designation and release of presidential records," Binnall responded.
The House of Representatives select committee investigating the riot has asked the National Archives, the agency housing Trump's White House records, to produce visitor logs, phone records and written communications between his advisers. The panel has said it needs the records to understand any role Trump may have played in fomenting the violence.
Trump supporters stormed the Capitol in a bid to prevent Congress from formally certifying his 2020 presidential election loss to Democrat Joe Biden. Shortly before the riot, Trump gave a speech to his supporters repeating his false claims that the election was stolen from him through widespread voting fraud and urging them to go to the Capitol and "fight like hell" to "stop the steal."
Trump sued the committee and the National Archives to try to prevent the release. In court filings, Trump's lawyers called the Democratic-led investigation politically motivated, and argued that the documents sought by the committee are protected by executive privilege, a legal doctrine that allows presidents to keep private some of their conversations with advisers.
District Judge Tanya Chutkan on November 9 rejected Trump's arguments, saying the Republican former president had not acknowledged the "deference owed" to Biden's determination as president that the House committee could access the materials.
"While broad, these requests, and each of the other requests made by the Committee, do not exceed the Committee's legislative powers," Chutkan said in her decision. "Presidents are not kings, and Plaintiff is not President."
The DC Circuit put off allowing the committee to access the records while it considers the matter. The three judges on the appeals panel randomly assigned to the case were appointed to the judiciary by either Biden or former President Barack Obama, both Democrats.
If Trump loses at the DC Circuit, he could take the matter to the Supreme Court. Trump also has directed associates to stonewall the committee, which has sought testimony and records from a number of them. His former chief strategist Steve Bannon already has been charged with two counts of contempt of Congress for defying the committee, pleading not guilty.