The US Court of Appeals for the DC Circuit on Tuesday affirmed a lower court ruling that a 2017 phone call between former president Donald Trump and then National Security Agency (NSA) Director, Admiral Michael Rogers, would remain privileged due to a lack of a binding “misconduct exception” to a Freedom of Information Act exemption which protects presidential communications.
The Protect Democracy Project challenged the NSA’s withholding of a memo of the conversation, during which Trump asked the NSA director to help him refute information connecting Trump to the Russian government.
The phone call arose out of alleged Russian interference in the 2016 Presidential election. In March 2017, FBI Director James Comey confirmed that the FBI was conducting an investigation into the Russian interference. Two months later, Trump fired Comey from this position and Robert Mueller was appointed to lead the investigation.
After Mueller’s appointment, The Washington Post reported “that Trump had called both the Director of National Intelligence and the Director of the NSA days after Comey’s testimony in March to ask that they rebut allegations of coordination between his presidential campaign and the Russian government.”
The appellate court upheld the ruling of the US District Court for the District of Columbia that, even when there is evidence of governmental misconduct, a “focused demonstration of need” is required to overcome the presidential communications privilege.