In Rebuke to Trump, Supreme Court Won’t Block Release of Jan. 6 Files

WASHINGTON — The Supreme Court on Wednesday refused a request from former President Donald J. Trump to block the release of White House records concerning the Jan. 6 attack on the Capitol.

Only Justice Clarence Thomas noted a dissent.

A special House committee investigating the attack sought the records from the National Archives, which gave both President Biden and Mr. Trump the opportunity to object.

Mr. Trump invoked executive privilege, a doctrine meant to protect the confidentiality of presidential communications, over some of the documents.

“Congress may not rifle through the confidential, presidential papers of a former president to meet political objectives or advance a case study,” his lawyers told the justices in an emergency application.

“These sweeping requests are indicative of the committee’s broad investigation of a political foe, divorced from any of Congress’s legislative functions,” the application said.

Mr. Biden took a different view in October in declining to assert executive privilege over some of the materials.

“Congress is examining an assault on our Constitution and democratic institutions provoked and fanned by those sworn to protect them, and the conduct under investigation extends far beyond typical deliberations concerning the proper discharge of the president’s constitutional responsibilities,” wrote Dana Remus, the White House counsel.

She added that executive privilege should not be employed to protect “information that reflects a clear and apparent effort to subvert the Constitution itself.”

Mr. Trump told the justices that he had a constitutional right to shield the materials from Congress even though Mr. Biden declined to invoke executive privilege over them.

“The disagreement between an incumbent president and his predecessor from a rival political party,” Mr. Trump’s lawyers told the court, “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.”

Lawyers for the House committee responded that the Supreme Court should not thwart its inquiry. “The select committee’s work,” they wrote, “is of the highest importance and urgency: investigating one of the darkest episodes in our nation’s history, a deadly assault on the United States Capitol and Congress, and an unprecedented disruption of the peaceful transfer of power from one president to the next.”

Mr. Trump had sued to block release of the documents, saying that the committee was investigating possible criminal conduct, a line of inquiry that he said was improper, and that the panel had no valid legislative reason to seek the requested information.

Lawyers for the committee responded that the two tasks were often intertwined. “Congress often legislates by probing past illegality to determine why it occurred, how it could be prevented, whether more resources should be allocated to prevention and whether and how existing laws should be changed,” they wrote, noting that Congress had enacted major legislation after the Watergate and Teapot Dome scandals.

Judge Tanya S. Chutkan of the Federal District Court in Washington ruled against Mr. Trump in November. A unanimous three-judge panel of the U.S. Court of Appeals for the District of Columbia Circuit affirmed that ruling in December.

Judge Patricia A. Millett, writing for the panel, acknowledged that former presidents have the right to invoke executive privilege. But she said the privilege is not absolute even when it is asserted by a sitting president.

In 1974, for instance, the Supreme Court unanimously ruled that President Richard M. Nixon had to comply with a trial subpoena seeking tapes of his conversations in the Oval Office, rejecting his claims of executive privilege.

Judge Millett wrote that several factors warranted disclosure of the documents despite Mr. Trump’s objections.

“To start,” she wrote, “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.”

It is not unusual for sitting presidents to waive executive privilege, Judge Millett wrote. Mr. Nixon declined to invoke it to block his aides’ testimony concerning discussions of possible criminal conduct before a Senate committee investigating the Watergate scandal. President Ronald Reagan authorized providing documents, including excerpts from his diaries, to congressional committees investigating the Iran-contra affair. President George W. Bush and Vice President Dick Cheney were questioned for hours by a commission investigating the Sept. 11, 2001, attacks.

In a Supreme Court brief on behalf of the Biden administration, Elizabeth B. Prelogar, the solicitor general, wrote that Mr. Biden’s decision to allow disclosure of some documents was similarly appropriate.

His decision, she wrote, “is not likely to have any materially greater effect on the future candor of presidential advisers than have prior presidential decisions not to assert executive privilege in connection with events like Watergate, Iran-contra and Sept. 11.”

Mr. Trump’s lawyers said the former president enjoyed a special status under a federal law governing the disclosure of presidential records.

“President Trump is more than an ordinary citizen,” they wrote. “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.”

Judge Millett wrote that the House committee had a legitimate need for the documents.

“There would seem to be few, if any, more imperative interests squarely within Congress’s wheelhouse than ensuring the safe and uninterrupted conduct of its constitutionally assigned business,” she wrote. “Here, the House of Representatives is investigating the single most deadly attack on the Capitol by domestic forces in the history of the United States.”

Mr. Trump’s objections to the release of information concerning the rally that preceded the Capitol attack, the gathering’s aftermath and related activities, Judge Millett wrote, were vague and inadequate.

“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.”

Source: NYT > U.S. > Politics

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