The case was a constitutional clash on the scope of executive privilege and whether a former president may invoke it when the current one has waived it.
Former President Donald J. Trump has said he has a constitutional right to shield some White House records from Congress even though President Biden declined to invoke executive privilege over them.
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, effectively rejecting Mr. Trump’s claim of executive privilege and handing a major victory to the special House committee investigating the riot.
The court, with only Justice Clarence Thomas noting a dissent, let stand an appeals court ruling that Mr. Trump’s desire to maintain the confidentiality of internal White House communications was outweighed by the need for a full accounting of the attack and the disruption of the certification of the 2020 electoral count.
The ruling means that there is no legal obstacle to prevent the National Archives from providing hundreds of pages of White House records to the committee.
In an unsigned order, the majority wrote that Mr. Trump’s request for a stay while the case moved forward presented weighty issues, including “whether and in what circumstances a former president may obtain a court order preventing disclosure of privileged records from his tenure in office, in the face of a determination by the incumbent president to waive the privilege.”
But an appeals court’s ruling against Mr. Trump did not turn on those questions, the order said.
“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,” the order said.
It was the latest example of a case in which the Supreme Court, which includes three justices appointed by Mr. Trump, ruled against him and his allies on issues related to the 2020 election.
Because the House committee investigating the attack sought the records from the National Archives, President Biden and Mr. Trump both had the opportunity to object.
Mr. Trump invoked executive privilege, a doctrine meant to protect the confidentiality of presidential communications, over some of the documents.
“These sweeping requests are indicative of the committee’s broad investigation of a political foe, divorced from any of Congress’s legislative functions,” his lawyers told the justices in an emergency application.
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.”
The committee has demanded detailed records about Mr. Trump’s every movement and meeting on the day of the assault. The panel’s requests include material about any plans formed in the White House or other federal agencies to derail the electoral vote count by Congress.
House investigators are seeking information about Mr. Trump’s lack of action in calling off the mob and more details about his pressure campaign to overturn the results of an election he lost at the polls.
Among the documents that Mr. Trump had asserted executive privilege over were proposed talking points for Kayleigh McEnany, his former press secretary; a handwritten note concerning Jan. 6; a draft text of a presidential speech for the “Save America” rally that preceded the mob attack; and a draft executive order on the topic of election integrity, the filing states.
Mr. Trump has also sought to block the release of records from the files of Mark Meadows, his former chief of staff; Stephen Miller, his former senior adviser; and Patrick F. Philbin, his former deputy counsel. Mr. Trump also sought to stop the release of the White House Daily Diary — a record of the president’s movements, phone calls, trips, briefings, meetings and activities — as well as logs showing phone calls to the president and to Vice President Mike Pence concerning Jan. 6.
Finally, Mr. Trump tried to keep secret a draft proclamation honoring the Capitol Police and two officers who died after the riot, Brian D. Sicknick and Howard Liebengood, as well as related emails; a memo about a potential lawsuit against several states that Mr. Biden won; an email chain from a state official regarding election-related issues; and talking points on supposed election irregularities in one county in Michigan.
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.”
Justice Brett M. Kavanaugh, who served as staff secretary to President George W. Bush, was the only justice to issue a signed opinion in the case. He said the appeals court, in a passage the majority had said was nonbinding, had been wrong in its analysis.
“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,” Justice Kavanaugh wrote. “Concluding otherwise would eviscerate the executive privilege for presidential communications.”
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.
Key Figures in the Jan. 6 Inquiry
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The House investigation. A select committee is scrutinizing the causes of the Jan. 6 riot at the U.S. Capitol, which occurred as Congress met to formalize Joe Biden’s election victory amid various efforts to overturn the results. Here are some key figures in the inquiry:
Donald Trump. The former president’s movement and communications on Jan. 6 appear to be a focus of the inquiry. While Mr. Trump has invoked executive privilege in an attempt to shield his records, the Supreme Court refused to block the release of the files.
Kevin McCarthy. The panel has requested an interview with the House Republican leader about his contact with Mr. Trump during the riot. The California representative, who could become speaker of the House after the midterms in November, has refused to cooperate.
Rudolph Giuliani. The panel has subpoenaed Mr. Trump’s personal lawyer and three members of the legal team — Jenna Ellis, Sidney Powell and Boris Epshteyn — who pursued conspiracy-filled lawsuits that made claims of voter fraud in the 2020 election.
Mike Pence. The former vice president could be a key witness as the committee focuses on Mr. Trump’s responsibility for the riot and considers criminal referrals, but Mr. Pence reportedly has not decided whether to cooperate.
Mark Meadows. Mr. Trump’s chief of staff, who initially provided the panel with a trove of documents that showed the extent of his role in the efforts to overturn the election, is now refusing to cooperate. The House voted to recommend holding Mr. Meadows in criminal contempt of Congress.
Scott Perry and Jim Jordan. The Republican representatives of Pennsylvania and Ohio are among a group of G.O.P. congressmen who were deeply involved in efforts to overturn the election. Both Mr. Perry and Mr. Jordan have refused to cooperate with the panel.
Fox News anchors. Texts between Sean Hannity and Trump officials in the days surrounding the riot illustrate the host’s unusually elevated role as an outside adviser. Mr. Hannity, along with Laura Ingraham and Brian Kilmeade, also texted Mr. Meadows as the riot unfolded.
Big Tech firms. The panel has criticized Alphabet, Meta, Reddit and Twitter for allowing extremism to spread on their platforms and saying they have failed to cooperate adequately with the inquiry. The committee has issued subpoenas to all four companies.
Steve Bannon. The former Trump aide has been charged with contempt of Congress for refusing to comply with a subpoena, claiming protection under executive privilege even though he was an outside adviser. His trial is scheduled for next summer.
Michael Flynn. Mr. Trump’s former national security adviser attended an Oval Office meeting on Dec. 18 in which participants discussed seizing voting machines and invoking certain national security emergency powers. Mr. Flynn has filed a lawsuit to block the panel’s subpoenas.
Phil Waldron. The retired Army colonel has been under scrutiny since a 38-page PowerPoint document he circulated on Capitol Hill was turned over to the panel by Mr. Meadows. The document contained extreme plans to overturn the election.
Jeffrey Clark. The little-known Justice Department official repeatedly pushed his colleagues to help Mr. Trump undo his loss. The panel has recommended that Mr. Clark be held in criminal contempt of Congress for refusing to cooperate.
John Eastman. The lawyer has been the subject of intense scrutiny since writing a memo that laid out how Mr. Trump could stay in power. Mr. Eastman was present at a meeting of Trump allies at the Willard Hotel that has become a prime focus of the panel.
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.
In his opinion on Wednesday, Justice Kavanaugh said there were important lessons in the court’s analysis in the Nixon case.
“The Nixon court noted, by way of historical example, that the Constitutional Convention was conducted ‘in complete privacy’ and that the records of the Convention remained confidential for more than 30 years,” Justice Kavanaugh wrote. “As was true at the Constitutional Convention, the presidential communications privilege cannot fulfill its critical constitutional function unless presidents and their advisers can be confident in the present and future confidentiality of their advice.”
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. 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. Mr. 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.”
Luke Broadwater contributed reporting.
Source: nytimes.com
