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
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