Trump said 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.
“President Trump is more than an ordinary citizen,” Binnall’s filing says. “ … He is one of only five living Americans who, as former Presidents, are granted special authority to make determinations regarding the disclosure of records and communications created during their terms of office.”
Later Thursday, Rep. Bennie G. Thompson (D-Miss.), chair of the House Jan. 6 committee, 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.
“Delay would inflict a serious injury on the Select Committee and the public by interfering with this mandate,” he added, suggesting the justices decide by Jan. 14.
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.
Trump sued, demanding that the documents be kept secret and arguing that he had residual rights to executive privilege as the former president despite Biden’s decision. Trump’s lawyers accused congressional Democrats of trying to intimidate the former president and emphasized the need to shield confidential executive branch information from release to protect the office of the president.
A district court judge in Washington disagreed in a November ruling, and the D.C. Circuit quickly affirmed the decision earlier this 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 Thursday that Democrats are simply looking for information to discredit a “political foe,” not for legitimate legislative interests.
“This sweeping request alone demands access to any number of records to which Congress is not — in any way — entitled,” Binnall wrote. “First, such records have nothing to do with the events of January 6th. Second, these records are protected by executive and other privileges. And third, and most importantly, these requests exceed the scope of the requesting committee’s authority because they lack any conceivable related legislative purpose.”
The Supreme Court should preserve its ability to “review this case not to benefit this ‘particular President,’ but for the benefit of ‘the Presidency itself,’ ” Binnall wrote, echoing a past court decision.
The case presents novel constitutional questions about the rights of a former president. In 1977, as lawmakers pursued reforms following the Watergate scandal, the Supreme Court rejected former president Richard M. Nixon’s attempt to stop the release of White House tapes and documents. Congress went on to pass the Presidential Records Act, establishing that a president’s official records belong to the public, not the occupant of the office, and creating a process for handling disputes.
Former presidents have previously waived executive privilege when dealing with matters of national significance, including the arms-for-hostages Iran-contra affair under President Ronald Reagan and the 9/11 terrorist attacks during George W. Bush’s presidency.
In Trump’s case, the National Archives and Records Administration has identified hundreds of documents from the Trump White House deemed relevant to the House committee’s Jan. 6 investigation. As required, the material was first reviewed by the Biden White House and Trump’s lawyers.
Biden’s White House counsel, Dana Remus, cited the “unique and extraordinary circumstances” of the Jan. 6 attack in deciding not to assert executive privilege and to allow release of the records.
“The constitutional protections of executive privilege should not be used to shield, from Congress or the public, information that reflects a clear and apparent effort to subvert the Constitution itself,” Remus wrote in a letter to the U.S. Archivist David Ferriero.
U.S. District Judge Tanya S. Chutkan, who sided with Congress in November, said the sitting president — not the former president — is “best positioned to evaluate the long-term interests of the executive branch and to balance the benefits of disclosure against any effect on the ability of future executive branch advisers to provide full and frank advice.”
Millett, like Chutkan nominated to the bench by President Barack Obama, said Trump had not been specific about the harm that would come from turning over the requested information.
“Mr. Trump has made no record nor even hinted to this court what context or information has been overlooked or what information could override President Biden’s calculus,” she wrote. “We cannot just presume it.”
Millett added: “As the incumbent, President Biden is the principal holder and keeper of executive privilege, and he speaks authoritatively for the interests of the Executive Branch. Under our Constitution, we have one President at a time.”
While he was president, Trump succeeded in shielding his private financial records from House investigators even when he lost several rounds in court. The Supreme Court rejected Trump’s bold claims of immunity from congressional investigation in July 2020, but lawmakers have yet to see the documents.
The justices sent the case back to lower courts, which narrowed the set of records Congress can review, and that case is now back on appeal at the D.C. Circuit.
The case is Donald Trump v. Bennie G. Thompson, et al.