The Supreme Court has rejected former President Donald Trump’s bid to use executive privilege to block a House committee investigating the Jan. 6 insurrection from accessing a trove of records created by Trump’s White House.
The ruling Wednesday opens up a trove of documents to congressional investigators who have sought them to determine Trump’s actions and mindset in the weeks leading up to the Jan. 6 attack, as well as what he did as his supporters were rioting at the Capitol.
Among the documents sought by the committee are speech drafts, call and visitor logs, handwritten notes and other files previously kept by senior Trump aides like chief of staff Mark Meadows, adviser Stephen Miller, press secretary Kayleigh McEnany and White House associate counsel Patrick Philbin.
The only member of the high court who signaled he would have granted Trump’s request for emergency relief was Justice Clarence Thomas.
Trump had sought to block access to more than 750 pages of records that the National Archives, which house the former president’s records, determined were relevant to the Jan. 6 committee’s investigation. The records include “draft text of a presidential speech for the January 6, 2021, Save America March; a handwritten list of potential or scheduled briefings and telephone calls concerning election issues; and a draft Executive Order concerning election integrity … a draft proclamation honoring deceased Capitol Police officers Brian Sicknick and Howard Liebengood, and associated e-mails from the Office of the Executive Clerk, which relate to the Select Committee’s interest in the White House’s response to the Capitol attack.”
The ruling may be the most significant moment yet for the Jan. 6 select committee investigating the attack on the Capitol. It will help the panel connect dots between Trump’s efforts to stoke disinformation about the 2020 election results and his awareness of the threat of violence posed by the groups that heeded his call to descend on Washington. They’ll also reveal details about what actions he took as the mob of his supporters surrounded and breached the Capitol, overrunning law enforcement and sending Congress fleeing for safety.
The action left in effect a ruling last month from the D.C. Circuit Court of Appeals, in which a three-judge panel said Trump had not met his legal burden to block disclosure of the records. It also will likely have a huge cascading effect on litigation brought against the Jan. 6 committee by other top Trump allies, including Meadows, who has similarly urged the court to uphold Trump’s claim of privilege. Meadows is facing potential charges of criminal contempt for refusing to testify to the panel.
The appeals court panel concluded unanimously that Trump could not assert executive privilege over the records as a former president because the incumbent, President Joe Biden, had agreed to hand the files over to the House committee.
The Supreme Court’s order on Wednesday did not reach a final conclusion on this point but said Trump’s effort failed because his assertion of executive privilege would have failed even if he were still in office.
“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 said.
“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 unsigned Supreme Court order added.
The ruling drove the point home by dismissing as “nonbinding dicta” the D.C. Circuit’s conclusion that Trump couldn’t pursue an executive privilege claim in this situation because he’s a former president.
The Jan. 6 committee requested the records in August, and the archivist began producing tranches on a rolling basis. But before they could be released, the archivist submitted them to Biden to determine whether to waive executive privilege.
For the vast majority of the records, Biden agreed to waive privilege. But Trump filed suit in October, claiming he had authority as a former president to assert privilege over his records.
While Thomas did not elaborate on why he would have granted Trump’s request for an emergency stay, Justice Brett Kavanaugh — a Trump appointee and a staunch advocate for executive power — issued an opinion that went further than the court’s main, unsigned order. He said the D.C. Circuit was wrong to conclude that a former president couldn’t assert executive privilege without the backing of the incumbent.
“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.”
“If Presidents and their advisers thought that the privilege’s protections would terminate at the end of the Presidency and that their privileged communications could be disclosed when the President left office (or were subject to the absolute control of a subsequent President who could be a political opponent of a former President), the consequences for the Presidency would be severe,” he added.
Kavanaugh’s solo opinion repeats the same language to dismiss the D.C. Circuit’s conclusion he disputes, twice calling it “dicta [that] should not be considered binding precedent going forward.” But he suggested that executive privilege is not “absolute” and might erode over time. In the end, he joined the majority’s overall conclusion that the appeals court’s ultimate decision to allow disclosure of the records to the House should not be disturbed at this time.
Trump’s petition to have the Supreme Court grant review of the D.C. Circuit ruling remains pending, but the justices may eventually conclude the issue is moot once the records reach the House.
