WASHINGTON — The Supreme Court on Wednesday turned down former President Donald Trump’s plea to shield his White House records from the House committee investigating the Jan. 6 attack on the Capitol.
With one dissent, the justices agreed with two lower courts that decided the former president’s claim of executive privilege could not outweigh the views of President Joe Biden, who supported the release.
Only Justice Clarence Thomas voted to grant Trump’s appeal.
The documents at issue are held by the National Archives under the terms of the Presidential Records Act.
In a brief unsigned opinion, the court said it appeared Trump’s bid to block the release of the records “would have failed even if he were the incumbent,” and as such, “his status as a former president necessarily made no difference to the (D.C. circuit) court’s decision.”
For this reason, the high court said, its decision rejecting Trump’s plea sets no precedent regarding ex-presidents and their claims of executive privilege.
In a concurring opinion, Justice Brett M. Kavanaugh, a former White House lawyer for President George W. Bush, said he believed ex-presidents retained the right to claim executive privilege.
“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. Concluding otherwise would eviscerate the executive privilege for presidential communications,” he wrote.
But he agreed with the outcome nonetheless.
Trump’s two other appointees — Justices Neil M. Gorsuch and Amy Coney Barrett — said nothing to indicate they disagreed with the ruling.
It’s not clear whether the archives have records that will prove significant for the House committee.
In August, Rep. Bennie Thompson, D-Miss., chairman of the House committee, asked the archivist for “all documents and communications related to efforts, plans or proposals to contest the 2020 presidential elections results.”
He also asked for “videos, photographs and other media” from the White House that related to the Jan. 6 rally, “the march to the Capitol ... and the activities of President Trump and other high-level executive branch officials that day.”
Both Trump and Biden were notified of the request, and Biden replied it was “not in the best interests of the United States” for him to assert executive privilege given the “unique and extraordinary circumstances.”
In a letter to David Ferriero, the archivist of the United States, White House Counsel Dana Remus said “the constitutional protections of executive privilege should not be used to shield, from Congress or the public, information that reflects a clear and apparent effort to subvert the Constitution itself.”
Rather, she said, Congress has a “compelling need” to investigate “an unprecedented effort to obstruct the peaceful transfer of power” and the “most serious attack on the operations of the federal government since the Civil War.”
In October, lawyers for Trump filed suit seeking to block the release. They said the records were protected by presidential privilege and Congress had no “legitimate legislative purpose” in obtaining them.
U.S. District Judge Tanya Chutkan, an appointee of former President Barack Obama, refused Trump’s request.
“Presidents are not kings, and the plaintiff is not president,” she wrote in November.
A three-judge panel of the U.S. Court of Appeals for the District of Columbia Circuit agreed. Judge Patricia Millett, writing for the court, said that executive privilege, “like all other Article II powers, resides with the sitting president.”
In their appeal, the former president’s lawyers urged the Supreme Court to “prevent two politically aligned branches of government from wielding unfettered power to undermine the presidency and our republic.”
They said the decisions rejecting Trump’s claim of privilege “effectively gut the ability of former presidents to maintain executive privilege over the objection of an incumbent, who is often (as is the case here) a political rival.”
