Posted January 19, 2022 at 7:30pm
The Supreme Court on Wednesday denied former President Donald Trump’s request to stop some White House records from being transmitted to the House committee investigating the Jan. 6, 2021, attack on the Capitol.
In a short, unsigned order, the Supreme Court essentially backed a lower court ruling that concluded Trump had “provided no basis” for the courts to override President Joe Biden’s judgment that executive privilege should not be asserted on those documents.
The justices emphasized that they left unresolved for now the questions of whether and when a former president, and not just the current president, can keep records from Congress by asserting executive privilege over White House documents from their time in office.
While those questions “are unprecedented and raise serious and substantial concerns,” the Supreme Court wrote that the U.S. Court of Appeals for the District of Columbia Circuit concluded the records should be turned over to Congress even if Trump were still the 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,” the Supreme Court wrote.
Only Justice Clarence Thomas noted his objection.
The decision means the House Jan. 6 panel will get records that Trump didn’t want them to see, just as those lawmakers are issuing a flurry of subpoenas to the former president’s lawyers and preparing for a series of public hearings about the attack. Even as the court was issuing its ruling, the panel issued subpoenas to Nicholas J. Fuentes and Patrick Casey, leaders of the “America First” or “Groyper” movement, who were active in calling into question the validity of the election and called for Republicans to be punished for not overturning election results.
“According to public reports, both Fuentes and Casey received tens of thousands of dollars in Bitcoin from a French computer programmer, funds the FBI has scrutinized to assess whether funds from this donor were linked to the Capitol attack or otherwise used to fund illegal activity,” the committee said in a statement announcing the subpoenas. Earlier in the week, the panel subpoenaed Trump’s attorney Rudy Giuliani, among others involved in making false claims about the election leading up to the Jan. 6 attack.
Trump had asked the Supreme Court to allow his challenge to play out at the Supreme Court before the National Archives and Records Administration, or NARA, sent the contested records to the Jan. 6 panel.
The committee requested records related to dozens of people, both in and out of the Trump administration. That includes Trump and his family members, as well as “any documents and communications involving White House personnel and any Member of Congress” related to the Jan. 6 attack or to Trump and his allies’ questioning of the validity of the presidential election.
Trump’s lawyers argued that the “sweeping” request for records from the panel, so soon after a president leaves office, would hamper “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.”
Biden had disagreed with Trump’s assessment for at least the first three batches of records in the House panel’s request, determining that the public interest in the House probe outweighs the confidentiality concerns underlying executive privilege.
Justice Brett M. Kavanaugh wrote separately Wednesday to underscore that even though the lower court found Trump would have failed to meet either standard legal test to protect presidential communications even as president, that doesn’t settle the bigger questions about former presidents.
The D.C. Circuit suggested a former president may not successfully claim privilege on records when the current president does not support that claim, Kavanaugh wrote, but that should not be considered binding precedent going forward.
“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.”
