Trump appeals to Supreme court in dispute over Jan. 6 documents

December 23, 2021
President Donald Trump listens during a "National Dialogue on Safely Reopening America's Schools," event in the East Room of the White House.
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WASHINGTON – Former President Donald Trump asked the Supreme Court on Thursday to block the House committee investigating the Jan. 6 Capitol insurrection from getting documents from the National Archives and Records Administration.

Trump’s lawyers, Justin Clark and Jesse Binnall, argued that confidential deliberations are fundamental to the operation of government and Congress limited its ability to access presidential records. But the lawyers argued the investigating committee ignored the restrictions with its sweeping request for documents.

“The Constitution, this Court’s precedent, and federal statutes invalidate the expansive request at issue here,” the lawyers wrote in their 195-page submission to the nation’s highest court. “Moreover, a former President has the right to assert executive privilege, even after his term of office.”

Trump objected to the release of hundreds of pages of documents, arguing the records should remain confidential because of executive privilege. The contested documents include handwritten notes about what was happening that day and call logs for Trump and Vice President Mike Pence, whose life was threatened as he oversaw Electoral College vote counting in his capacity as Senate president.

But a U.S. district court and the U.S. Court of Appeals for the D.C. Circuit each ruled that President Joe Biden’s waiver of executive privilege for the Jan. 6 investigation outweighed Trump’s claim.

The case is significant not only for the documents at stake, but because several Trump aides and advisers have defied committee subpoenas by citing executive privilege. The high court’s decision could help define guidelines for congressional oversight and investigation of the executive branch.

Steve Bannon, a onetime Trump political strategist, faces trial on contempt charges July 18. The House cited former White House chief of staff Mark Meadows for contempt Dec. 14 and urged the Justice Department to charge him criminally. Former Justice Department official Jeffrey Clark has also refused to answer questions, but the House postponed voting on a contempt citation against him until after he meets with the committee again.

More:What documents does Trump not want the Jan. 6 House panel to see? Appointments, call logs and handwritten notes

In the Trump case, the committee asked for written communications, calendar entries, videos, photographs or other media related to Jan. 6 and its aftermath, strategies on how to delay the Electoral College vote that day and the planning of the rally before the attack on the Capitol, among other requests.

Though the focus was on Jan. 6, it also spanned 2020 for Trump’s public remarks about the election and its validity, the transfer of power, potential changes of personnel in executive branch agencies and foreign influence in the election.

More:Who has been subpoenaed so far by the Jan. 6 committee?

Trump sued the National Archives in federal court Oct. 18 to block the release by arguing the documents should be kept confidential under executive privilege, to ensure that presidents receive candid advice from aides.

Biden waived executive privilege for Trump on Oct. 8. District Court Judge Tanya Chutkan refused to block the release.

Trump’s lawyers repeated the same arguments that lost in the lower courts, saying presidential records are typically unavailable until 12 years after a term ends, that the committee’s request is too broad and that Congress has no legislative purpose for requesting them.

“This sweeping request alone demands access to any number of records to which Congress is not – in any way – entitled,” the lawyers wrote. “The congressional request is untethered from any valid legislative purpose and exceeds the authority of Congress under the Constitution and the Presidential Records Act.”

But members of the committee have argued they are contemplating legislation to prevent another attack on the Capitol or disruption to an election, such as the temporary halt of counting Electoral College votes.

“This committee is engaged in critical investigative and legislative activity for which there is no greater purpose in terms of Congress’ responsibility,” Rep. Liz Cheney of Wyoming, the top Republican on the committee, said Dec. 14 during House debate about a similar subpoena for documents and testimony from former White House chief of staff Mark Meadows.

The initial batches of records have been divided into four groups. Besides the appointments and call records for Trump and Pence, the first set of pages includes daily presidential diaries, schedules and activity logs. The documents cover drafts of speeches, remarks and correspondence concerning Jan. 6.

The bulk of the second set of documents includes presidential calendars and handwritten notes about Jan. 6, a draft speech for the Save America March, a handwritten list of potential or scheduled briefings and phone calls concerning election issues and a draft executive order concerning election integrity, according to the agency.

More:What did Trump do during Capitol riots? Jan. 6 committee telecom requests aim to recreate minute-by-minute account

The third batch of documents includes a draft proclamation honoring Capitol Police officers Brian Sicknick and Howard Liebengood, who died after the attack, according to the agency. The documents feature a memo originating outside the White House regarding a potential lawsuit by the United States against several states Biden won.

Other records contain an email chain originating from an unnamed state official regarding election issues, talking points about alleged irregularities in a Michigan county and a document containing presidential findings concerning the security of the 2020 election after it occurred.

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