Bloomberg Law
Free Newsletter Sign Up
Bloomberg Law
Welcome
Go
Free Newsletter Sign Up

Supreme Court Rejects Trump, Clears Release of Jan. 6 Papers (3)

Jan. 20, 2022, 2:08 AM

The U.S. Supreme Court cleared the way for some of former President Donald Trump’s White House papers to be turned over to a congressional panel investigating the Jan. 6 Capitol attack.

With just one public dissent, the justices on Wednesday rejected Trump’s bid to block the release on grounds of executive privilege.

The rebuff gives a major legal and political victory to the House select committee and its Democratic chairman, Representative Bennie Thompson of Mississippi. The National Archives can now turn over about 800 pages of material, including visitor and call logs, emails, draft speeches and handwritten notes.

“The Supreme Court’s action tonight is a victory for the rule of law and American democracy,” Thompson and the committee’s vice chair, Republican Liz Cheney of Wyoming, said in a joint statement. “The Select Committee has already begun to receive records that the former president had hoped to keep hidden and we look forward to additional productions regarding this important information.”

Trump spokesman Taylor Budowich didn’t immediately respond to a request for a response to the decision.

Trump was seeking to override President Joe Biden’s decision to waive executive privilege. Trump argued that a former president’s need for privacy can outweigh the views of the current chief executive.

In an unsigned, one-paragraph order, the high court said the case didn’t offer the opportunity to decide that question. The justices pointed to a federal appeals court’s conclusion that Trump wouldn’t have been able to claim executive privilege even if he were still in office.

Thomas Dissent

“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 said.

Justice Clarence Thomas was the lone public dissenter. He gave no explanation, saying only that he would have granted Trump’s request to block the release while the court considered whether to take up his appeal.

The Capitol attack, which grew out of Trump’s efforts to overturn the presidential election results, took place as Congress was meeting to certify Biden’s Electoral College victory last year. Trump and his allies have resisted the committee’s efforts to investigate the riot and determine exactly what role the former president played.

Trump argued that the appeals court decision would mean presidents won’t be able to have frank discussions with aides without having to worry that a future administration will let those communications become public.

“This harm would not only befoul President Trump’s interests in maintaining the confidentiality of his presidential records, but the harm would extend to future presidents as well,” Trump’s lawyers argued. “This violation would be a substantial blow to the institution of the presidency.”

Justice Brett Kavanaugh wrote separately to say he disagreed with the appeals court’s suggestion that a former president may not claim executive privilege if the current president disagrees.

“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.”

But Kavanaugh said that the appeals court’s reasoning on that issue wouldn’t have binding effect because it was “dicta” -- that is, not essential to the outcome of the case. His statement didn’t explicitly say whether he agreed with the court’s rejection of Trump.

The cases are Trump v. Thompson, 21-932, and Trump v. Thompson, 21A272.

(Updates with Thompson and Cheney reaction in third paragraph.)

--With assistance from Mark Niquette.

To contact the reporter on this story:
Greg Stohr in Washington at gstohr@bloomberg.net

To contact the editors responsible for this story:
Elizabeth Wasserman at ewasserman2@bloomberg.net

John Harney

© 2022 Bloomberg L.P. All rights reserved. Used with permission.

To read more articles log in.

Learn more about a Bloomberg Law subscription.