WASHINGTON – The Supreme Court refused Wednesday to block the House committee investigating the Jan. 6 Capitol attack from getting former President Donald Trump’s administration documents.
The brief decision avoided a detailed analysis of Trump’s argument that the documents should remain confidential, which could have redefined the contours of executive privilege for the first time in nearly 50 years.
“The questions 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, are unprecedented and raise serious and substantial concerns,” the high court wrote in an unsigned opinion.
“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 court added.
Associate Justice Brett Kavanaugh agreed with the court but wrote separately to note the importance of the confidentiality of presidential communication, as outlined in a 1974 case involving former President Richard Nixon. Kavanaugh, who was appointed by Trump, said none of his arguments would have succeeded under the Nixon precedent.
Associate Justice Clarence Thomas would have granted the application to keep the documents confidential while the high court reviewed the case.
Trump fought the release of hundreds of pages of documents from the National Archives and Records Administration by arguing the records should remain confidential so presidents receive candid advice from aides. The contested documents could suggest whom he talked with on Jan. 6, 2021, when a mob of his supporters stormed the U.S. Capitol trying to stop the congressional certification of Joe Biden’s Electoral College victory.
A U.S. district court and a panel of the U.S. Court of Appeals for the D.C. Circuit each ruled that President Biden’s waiver of executive privilege for materials sought by the investigation outweighed Trump’s claim.
Had it taken Trump’s case, the high court could have set guidelines for the information Congress can obtain when investigating the executive branch. The last major precedent dealing with executive privilege came during the Watergate investigation of Nixon, who resigned as president after the court forced the release of his Oval Office recordings.
The documents at stake include handwritten notes and call logs for Trump and Vice President Mike Pence, whose life was threatened as he presided over the Senate counting Electoral College votes that confirmed Biden won the 2020 election.
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.
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 and urged the Justice Department to charge him criminally. Former Justice Department official Jeffrey Clark refused to answer questions, but the House postponed voting on contempt for him until after he meets with the committee again.
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 certification 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 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.
Trump sued the National Archives in federal court Oct. 18 to block the release, arguing the documents should be kept confidential because of executive privilege.
Biden waived the privilege for Trump on Oct. 8. U.S. District Court Judge Tanya Chutkan refused to block the release.
A three-judge panel of the D.C. Circuit reached the same conclusion.
The initial batches of records have been divided into four groups. Besides the appointments and call records for Trump and Pence, the first set 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.
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