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Supreme Court rejects Trump’s request to withhold Jan. 6 materials from House committee investigating Capitol riot

Former president Donald Trump speaks to supporters at an event in Phoenix on July 24, 2021. (Cassidy Araiza/for The Washington Post)
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The Supreme Court on Wednesday rejected former president Donald Trump’s request to block the release of some of his White House records to a congressional committee investigating the Jan. 6, 2021, attack on the U.S. Capitol.

The order turned aside Trump’s request to block the records’ release while the case regarding his assertion of executive privilege continues through the courts. It means there is no legal obstacle to release of the materials from the National Archives — which President Biden has approved — and Trump’s lawyers have argued that would make the case moot.

White House spokesman Michael Gwin said the court’s ruling was an “important step forward” in the probe.

“The former President subverted the constitution in an attempt to overturn a lawful and fair election,” Gwin said in a statement Wednesday night. “His actions represented a unique and existential threat to our democracy, and President Biden has been clear that these events require a full investigation to ensure that what we saw on January 6th can never happen again.”

It was a major victory for the House select committee, which has been aggressive in going after Trump’s records, issuing subpoenas to his allies and focusing on the president’s actions during the insurrection.

“The Supreme Court’s action tonight is a victory for the rule of law and American democracy,” committee chairman Rep. Bennie G. Thompson (D-Miss.) and vice chair Rep. Liz Cheney (R-Wyo.) said in a joint statement. “The Select Committee has already begun to receive records that the former President had hoped to keep hidden. … Our work goes forward to uncover all the facts about the violence of January 6th and its causes.”

The records will be released to the committee, and not the public.

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The Supreme Court’s order, with only Justice Clarence Thomas noting dissent, did not provide detailed reasoning for rejecting the former president’s application. Nor did Thomas explain why he would have granted the request. Neither is uncommon when the court is addressing an emergency motion.

But it was another defeat for Trump at the Supreme Court, where he chose a third of the sitting justices. The former president said in the past he is disappointed in the high court and that some of the justices lack “guts.”

The court turned aside requests from Trump and his supporters to get involved in challenges to the 2020 election results. It ruled against his claims that the presidency protected him from investigation and rejected his efforts to block release of his financial records.

The legal battle over roughly 800 pages of documents presented a unique conflict between a sitting president and his defeated rival predecessor. But the unsigned Supreme Court order said that issue did not need to be decided now.

Many have argued that President Donald Trump's efforts amounted to an attempted coup on Jan. 6. Was it? And why does that matter? (Video: Monica Rodman, Sarah Hashemi/The Washington Post)

Those are “unprecedented” questions that raise “serious and substantial concerns,” the court said in its one-paragraph order. But it said the ruling against Trump by a panel of the U.S. Court of Appeals for the D.C. Circuit would have been the same if he were the sitting president.

“Because the Court of Appeals concluded that President Trump’s claims would have failed even if he were the incumbent, his status as a former President necessarily made no difference to the court’s decision,” according to the court’s order.

It concluded the appeals court’s findings on those questions should not be considered precedent.

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Justice Brett M. Kavanaugh went further, and wrote separately to say that, despite the ruling against Trump’s request, a former president does not lose the ability to invoke executive privilege.

“A former President must be able to successfully invoke the Presidential communications privilege for communications that occurred during his Presidency, even if the current President does not support the privilege claim,” Kavanaugh wrote. “Concluding otherwise would eviscerate the executive privilege for Presidential communications.”

Both the court’s order and Kavanaugh noted the appeals court evaluated Trump’s request under the test that came from a 1974 ruling in which the court rejected President Richard M. Nixon’s claims of executive privilege and ruled he had to turn over Oval Office tapes.

Lawyers for Trump had asked the justices to put on hold the D.C. Circuit decision, which rejected the former president’s assertions of executive privilege. Biden determined the subpoenaed material could be released to the select committee.

Trump’s lawyers argued the high court should take the case to determine whether that is proper.

“The disagreement between an incumbent president and his predecessor from a rival political party is both novel and highlights the importance of executive privilege and the ability of presidents and their advisers to reliably make and receive full and frank advice, without concern that communications will be publicly released to meet a political objective,” wrote Jesse R. Binnall, a lawyer for Trump.

Every lower-court judge that has heard the issue agreed that the committee has a right to the records, and that Biden, as the sitting president, was the proper person to judge whether they are protected by executive privilege.

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Thompson had asked the court to expedite its consideration of Trump’s request.

“The Select Committee is investigating a deadly assault on the United States Capitol, the Speaker of the House, the Vice President, and both Chambers of Congress, and a dangerous interruption of Congress’s constitutional duty and the peaceful transfer of power,” House General Counsel Douglas N. Letter wrote.

Biden Solicitor General Elizabeth B. Prelogar told the court that it should not get involved when both the president and Congress have determined the need for the information to be released.

Trump’s request “turns primarily on his claim that providing the records to the committee would harm the executive branch and, by extension, the public,” Prelogar wrote. “But the Constitution vests the Executive power in the incumbent President, who is best positioned to make those assessments. And President Biden has determined that an assertion of executive privilege over the specific records at issue here is not in the interests of the Nation.”

Siding with the former president “would be an unprecedented intrusion on the incumbent President’s” constitutional authority, she wrote.

The House investigative committee in August requested Trump’s official communications and details of his activities leading up to the insurrection by Trump supporters, an incident that forced the evacuation of the Capitol and led to the deaths of five people.

A U.S. district judge in Washington disagreed with Trump’s claim of executive privilege in a November ruling, and the D.C. Circuit quickly affirmed the decision last month.

“The events of January 6th exposed the fragility of those democratic institutions and traditions that we had perhaps come to take for granted,” wrote Judge Patricia A. Millett, joined by Judges Robert L. Wilkins and Ketanji Brown Jackson. “In response, the President of the United States and Congress have each made the judgment that access to this subset of presidential communication records is necessary to address a matter of great constitutional moment for the Republic.”

The panel delayed implementation of its order so Trump could go to the Supreme Court.

Trump told the court that Democrats are simply looking for information to discredit a “political foe,” not for legitimate legislative interests.

Ann E. Marimow, Tom Hamburger and Jacqueline Alemany contributed to this report.

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