Former President Trump's lawyers asked a U.S. federal appeals court on Tuesday to prevent records of his conversations and actions in the run up to the deadly attack on the U.S. Capitol being handed to congressional investigators.
But they immediately ran into skeptical questions from a panel of three judges, who wanted to know why a former president got to overrule the wishes of an incumbent.
'Is there a circumstance in which the former president ever gets to make this kind of call, and why should he under these circumstances?' Judge Ketanji Brown Jackson, seen as a future Supreme Court nominee for President Biden, asked during the hearing.
She said the legislative history showed that in a dispute between incumbent and former president, the incumbent 'gets to decide.'
A House investigative committee demanded documents from the National Archives - including visitor logs, phone records and written communications - in August.
Biden has waived the right of executive privilege over hundreds of pages.
The result has been a legal back and forth over whether the records are privileged and whether the House investigation is politically motivated.
Jesse Binnall, of Trump's legal team, opened the hearing at the U.S. Court of Appeals for the District of Columbia Circuit, by saying: 'All three branches of government have acknowledged there is a right of former presidents to challenge the designation and release of presidential records.'
A lower court has already rejected the claim of executive privilege because Trump is no longer in power.
But Justin Clark, another Trump lawyer, suggested that executive privilege could be imbued in a document at the time of its creation, rather than at the time of dispute some time later.
Lawyers for former President Trump on Tuesday asked an appeals court to keep records about his conversations before and during the Jan. 6 Capitol riot from congressional investigators
The House Jan. 6 committee is investigating the attack on the U.S. Capitol when hundreds of Trump supporters tried to stop Congress certifying the results of the 2020 election
Jan. 6 panel considers whether to refer former Trump DOJ attorney Jeffrey Clark for contempt of court charges after he refused to testify
The vote on whether to refer Clark for criminal charges will take place on Wednesday
The Democrat-led House committee investigating the January 6 attack on the US Capitol is considering potential criminal charges for former Justice Department lawyer Jeffrey Clark, it was revealed on Monday.
The panel will vote on whether to refer Clark for charges on Wednesday of this week.
Clark was a low-level DOJ employee who caught the attention of former President Donald Trump and with his backing reportedly tried to pressure his bosses to either step down or force state governments to investigate their 2020 election results.
He refused to testify in front of the bipartisan panel and could be next in line for a criminal complaint after Donald Trump's former adviser Steve Bannon, who was indicted by a federal grand jury earlier this month for refusing to testify.
Clark appeared for a deposition November 5 but told lawmakers that he would not answer questions based partly on Trump's legal efforts to block the committee´s investigation.
'If the former than the process outlined in the Presidential Records Act works very well,' he said.
'If it's the latter, then privilege tends to fail and the concerns raised by Congress at the time of passage with respect to partisanising presidential records, and the process of executive privilege, come into play.'
But questions posed by the judges suggested they were unimpressed with the argument.
'It's simply a question, as I understand it, in this case of the current president has said this is a qualified privilege,' said Judge Patricia Millett, one of three judges hearing the case.
'And it's not a permanent privilege and it can be waived, and I'm making the decision that it is appropriate to share these documents with this committee committee given the vital public interest of the United States in this investigation.'
Trump's lawyers ended the hearing on a far from optimistic note.
Clark said the team would need time to file another injunction against releasing the documents if the court's decision went against them
'Considering the weight of the issue the former president would need and request some period of time - not a long period of time - to consider and request another administrative stay or injunction pending appeal,' he said.
Trump suffered another setback on Tuesday when it emerged that former White House Chief of Staff Mark Meadows had reached a deal to give information to the committee.
The former president and his supporters are in the crosshairs of the Jan. 6 committee, which was set up to investigate the deadly riot.
Trump supporters stormed the Capitol in an effort to to prevent Congress from certifying his 2020 election loss to Democrat Joe Biden.
Minutes earlier, the president urged them to march on Congress.
And for weeks he made unsubstantiated claims that the election was stolen from him.
Trump has ordered his former aides not cooperate with the investigation.
After the committee requested the documents, Trump sued the panel and the National Archives to prevent the release of at least 750 pages.
According to the National Archives they include daily diaries, speech drafts, correspondence, handwritten notes, email chains and more.
That attempt to keep them private was rejected by U.S. District Judge Tanya Chutkan on Nov. 9.
'While broad, these requests, and each of the other requests made by the committee, do not exceed the committee's legislative powers,' she said in her decision.
'Presidents are not kings, and plaintiff is not president.'
Chutkan said executive privilege existed for the benefit of the nation, not individuals, making the incumbent president best placed to balance the pros and cons of its use.
Trump's lawyers appealed and the D.C. court barred the committee from accessing the records while it deliberates.
The former president has one last chance to appeal if he loses. He could take his case all the way to the Supreme Court.
'Future elections are imminent and there could be future attacks on democracy rooted in conduct occurring well before the election,' House counsel Douglas Letter wrote in a brief filed with the court last week.
Trump supporters stormed the Capitol on Jan. 6 in an attempt to prevent Congress from formally certifying his 2020 presidential election loss to Joe Biden
Lawyers from the Justice Department said they were not seeking to make an example of Trump but simply investigating a 'singular attack on the Capitol.'
Trump's lawyers had earlier argued that the House committee did not have a legal basis for its stance but was harassing a political rival.
Instead, they said production of the documents should be put on hold while the legal arguments are heard.
'It is naïve to assume that the fallout will be limited to President Trump or the events of January 6, 2021,' his attorneys wrote.
'Every Congress will point to some unprecedented thing about "this president" to justify a request for his presidential records.'
The hearing started soon after reports emerged that Trump telephoned his 'top lieutenants' stationed at the Willard Intercontinental Hotel in Washington, D.C., to discuss ways to steal the election hours before his supporters stormed the Capitol.
The Guardian reported that he made separate calls to his legal and non-legal aides to discuss avenues to stop the next day's vote certification.
The group was led by Rudy Giuliani, Steve Bannon, former strategic adviser Boris Epshteyn and lawyer John Eastman.
Trump spokeswoman Liz Harrington told DailyMail.com that the report was 'totally false.'