>> Adam Liptak, The New York Times
Published: 2022-01-20 11:53:12 BdST
The court, with only Justice Clarence Thomas noting a dissent, let stand an appeals court ruling that Trump’s desire to maintain the confidentiality of internal White House communications was outweighed by the need for a full accounting of the attack and the disruption of the certification of the 2020 electoral count.
In an unsigned order, the majority wrote that Trump’s request for a stay while the case moved forward presented weighty issues, including “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.”
But an appeals court’s ruling against Trump did not turn on those questions, the order 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 order said.
Within hours of the decision, the National Archives turned over hundreds of pages of documents to the committee.
Rep Bennie Thompson, chair of the committee, and Rep Liz Cheney, vice chair, called the decision “a victory for the rule of law and American democracy.”
“Our work goes forward to uncover all the facts about the violence of Jan 6 and its causes,” they said.
It was the latest example of a case in which the Supreme Court, which includes three justices appointed by Trump, ruled against him and his allies on issues related to the 2020 election.
Because the House committee investigating the attack sought the records from the National Archives, Biden and Trump both had the opportunity to object.
Trump invoked executive privilege, a doctrine meant to protect the confidentiality of presidential communications, over some of the documents.
“These sweeping requests are indicative of the committee’s broad investigation of a political foe, divorced from any of Congress’ legislative functions,” his lawyers told the justices in an emergency application.
Biden took a different view in October in declining to assert executive privilege over some of the materials.
“Congress is examining an assault on our Constitution and democratic institutions provoked and fanned by those sworn to protect them, and the conduct under investigation extends far beyond typical deliberations concerning the proper discharge of the president’s constitutional responsibilities,” wrote White House counsel Dana Remus.
She added that executive privilege should not be employed to protect “information that reflects a clear and apparent effort to subvert the Constitution itself.”
The committee has demanded detailed records about Trump’s every movement and meeting on the day of the assault. The panel’s requests include material about any plans formed in the White House or other federal agencies to derail the electoral vote count by Congress.
House investigators are seeking information about Trump’s lack of action in calling off the mob and more details about his pressure campaign to overturn the results of an election he lost at the polls.
Among the documents that Trump had asserted executive privilege over were proposed talking points for Kayleigh McEnany, his former press secretary; a handwritten note concerning Jan. 6; a draft text of a presidential speech for the “Save America” rally that preceded the mob attack; and a draft executive order on the topic of election integrity, the filing states.
Trump has also sought to block the release of records from the files of Mark Meadows, his former chief of staff; Stephen Miller, his former senior adviser; and Patrick F Philbin, his former deputy counsel. Trump also sought to stop the release of the White House Daily Diary — a record of the president’s movements, phone calls, trips, briefings, meetings and activities — as well as logs showing phone calls to the president and to Vice President Mike Pence concerning Jan 6.
Finally, Trump tried to keep secret a draft proclamation honouring the Capitol Police and two officers who died after the riot, Brian D Sicknick and Howard Liebengood, as well as related emails; a memo about a potential lawsuit against several states that Biden won; an email chain from a state official regarding election-related issues; and talking points on supposed election irregularities in one county in Michigan.
Trump told the justices that he had a constitutional right to shield the materials from Congress even though Biden declined to invoke executive privilege over them.
“The disagreement between an incumbent president and his predecessor from a rival political party,” Trump’s lawyers told the court, “is both novel and highlights the importance of executive privilege and the ability of presidents and their advisers to reliably make and receive full and frank advice, without concern that communications will be publicly released to meet a political objective.”
Lawyers for the House committee responded that the Supreme Court should not thwart its inquiry. “The select committee’s work,” they wrote, “is of the highest importance and urgency: investigating one of the darkest episodes in our nation’s history, a deadly assault on the United States Capitol and Congress, and an unprecedented disruption of the peaceful transfer of power from one president to the next.”
Justice Brett Kavanaugh, who served as staff secretary to President George W. Bush, was the only justice to issue a signed opinion in the case. He said the appeals court, in a passage the majority had said was nonbinding, had been wrong in its analysis.
“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.”
Trump had sued to block release of the documents, saying that the committee was investigating possible criminal conduct, a line of inquiry that he said was improper, and that the panel had no valid legislative reason to seek the requested information.
Lawyers for the committee responded that the two tasks were often intertwined. “Congress often legislates by probing past illegality to determine why it occurred, how it could be prevented, whether more resources should be allocated to prevention and whether and how existing laws should be changed,” they wrote, noting that Congress had enacted major legislation after the Watergate and Teapot Dome scandals.
Judge Tanya Chutkan of the US District Court in Washington ruled against Trump in November. A unanimous three-judge panel of the US Court of Appeals for the District of Columbia Circuit affirmed that ruling in December.
Judge Patricia Millett, writing for the panel, acknowledged that former presidents have the right to invoke executive privilege. But she said the privilege is not absolute even when it is asserted by a sitting president.
In 1974, for instance, the Supreme Court unanimously ruled that President Richard Nixon had to comply with a trial subpoena seeking tapes of his conversations in the Oval Office, rejecting his claims of executive privilege.
In his opinion Wednesday, Kavanaugh said there were important lessons in the court’s analysis in the Nixon case
“The Nixon court noted, by way of historical example, that the Constitutional Convention was conducted ‘in complete privacy’ and that the records of the Convention remained confidential for more than 30 years,” Kavanaugh wrote. “As was true at the Constitutional Convention, the presidential communications privilege cannot fulfill its critical constitutional function unless presidents and their advisers can be confident in the present and future confidentiality of their advice.”
Millett wrote that several factors warranted disclosure of the documents despite Trump’s objections.
“To start,” she wrote, “as the incumbent, President Biden is the principal holder and keeper of executive privilege, and he speaks authoritatively for the interests of the executive branch. Under our Constitution, we have one president at a time.”
It is not unusual for sitting presidents to waive executive privilege, Millett wrote. Nixon declined to invoke it to block his aides’ testimony concerning discussions of possible criminal conduct before a Senate committee investigating the Watergate scandal. President Ronald Reagan authorised providing documents, including excerpts from his diaries, to congressional committees investigating the Iran-Contra affair. Bush and Vice President Dick Cheney were questioned for hours by a commission investigating the Sept 11, 2001, attacks.
In a Supreme Court brief on behalf of the Biden administration, Solicitor General Elizabeth Prelogar wrote that Biden’s decision to allow disclosure of some documents was similarly appropriate.
His decision, she wrote, “is not likely to have any materially greater effect on the future candour of presidential advisers than have prior presidential decisions not to assert executive privilege inconnection with events like Watergate, Iran-Contra and Sept 11.”
Trump’s lawyers said the former president enjoyed a special status under a federal law governing the disclosure of presidential records.
“President Trump is more than an ordinary citizen,” they wrote. “He is one of only five living Americans who, as former presidents, are granted special authority to make determinations regarding the disclosure of records and communications created during their terms of office.”
Millett wrote that the House committee had a legitimate need for the documents.
“There would seem to be few, if any, more imperative interests squarely within Congress’ wheelhouse than ensuring the safe and uninterrupted conduct of its constitutionally assigned business,” she wrote. “Here, the House of Representatives is investigating the single most deadly attack on the Capitol by domestic forces in the history of the United States.”
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