Lawyers for former president Donald Trump told the Supreme Court on Wednesday that a Washington Post interview with the chairman of the House select committee investigating the Jan. 6 attack on the Capitol shows the committee is trying to establish a criminal complaint against Trump, something the lawyers say is beyond the committee’s authority.
The lawyers filed a supplemental brief alerting the justices to a Dec. 23 Post article featuring an interview with Rep. Bennie G. Thompson (D-Miss.), the committee’s chairman. In the article, Thompson said the committee is looking intently into Trump’s actions on Jan. 6 as it considers whether to recommend that the Justice Department open a criminal investigation into the former president.
“The Washington Post has confirmed what was already apparent — the Committee is indeed seeking any excuse to refer a political rival for criminal charges, and they are using this investigation to do so,” Trump lawyer Jesse R. Binnall wrote.
Binnall said the committee is acting as “an inquisitorial tribunal seeking evidence of criminal activity,” which he said is “outside of any of Congress’s legislative powers.”
Trump asked the Supreme Court earlier this month to halt the release of his White House records to the select committee, saying the case presents a unique conflict between a sitting president and his rival predecessor.
Lawyers for Trump have asked the justices to put on hold a unanimous ruling from the U.S. Court of Appeals for the D.C. Circuit, which rejected his assertions of executive privilege and his request to keep secret roughly 800 pages of his papers. President Biden determined the material could be released to the committee.
Trump said the high court should take the case to determine whether that is proper.
Binnall wrote that The Post interview with Thompson fortified that request.
In the article, Thompson said Trump’s delayed response in asking those who had invaded the Capitol to leave could be a factor in deciding whether to make a criminal referral, which is when Congress informs the Justice Department it believes a crime has been committed. It would then be up to federal prosecutors to decide whether to pursue a charge.
“That dereliction of duty causes us real concern,” Thompson said. “And one of those concerns is that whether or not it was intentional, and whether or not that lack of attention for that longer period of time, would warrant a referral.”
In the article, former federal prosecutor Randall D. Eliason warned that the committee’s focus on criminal referrals could also boost the claims of those resisting subpoenas that the lawmakers’ inquiry doesn’t have a legislative purpose, but rather, is meant to uncover crimes.
The release of records to the committee has been hotly contested. After Biden said the committee was entitled to certain information it sought, Trump sued.
But both a district judge and the appeals court disagreed with the former president.
“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 appeals court wrote. It said decisions about executive privilege were best left to the sitting president.