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Supreme Court shoots down Trump request to keep Jan. 6 records secret

The high court rejected an executive privilege claim from the former president trying to block his records from Congress

The Supreme Court on Wednesday night denied a last-ditch attempt from former President Donald Trump as he sought to keep his White House records out of the hands of the congressional committee investigating the Jan. 6 insurrection.

All of the justices except Justice Clarence Thomas agreed to the denial, finding the former president’s privilege claims raised serious concerns.

“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 court wrote in a short opinion announcing the order. 

Trump appealed to the court — which contains three of his appointed justices — as a Hail Mary in December to stop the congressional committee investigating the Capitol riot from gaining access to nearly 800 pages of his White House records surrounding events on that day. While presidents usually retain the ability to restrict access to their records for up to 12 years with the Presidential Records Act, President Joe Biden refused to keep the records from Congress, creating an unprecedented tug of war between a former president and the sitting one.  

Headed by Democratic Congressman Bennie Thompson of Mississippi, the Jan. 6 committee requested in August documents and communications from Trump’s speech hours before the insurrection, his Twitter messages, and documents and communications in the White House, including from the president’s personal advisers. After Biden refused to block their release, Trump headed to the courts, where he struck out in the district court and D.C. Circuit. 

Justice Brett Kavanaugh, a Trump appointee, wrote a statement respecting the denial of the application. Kavanaugh said he disagreed with the court of appeals ruling that former presidents cannot block records not protected by the current officeholder. He cites United States v. Nixon in his explanation that presidents must be able to retain the secrecy of their records in order for the government to properly function. 

“Without sufficient assurances of continuing confidentiality, Presidents and their advisers would be chilled from engaging in the full and frank deliberations upon which effective discharge of the President’s duties depends,” Kavanaugh wrote. 

However, he goes on to say this power is not absolute. 

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“To be clear, to say that a former President can invoke the privilege for Presidential communications that occurred during his Presidency does not mean that the privilege is absolute or cannot be overcome,” Kavanaugh wrote. 

The order, as well as Kavanaugh’s statement, stress that this decision should be considered nonbinding dicta setting no precedent going forward. 

Fighting Trump’s final effort to safeguard his records, Thompson drew on Alexander Hamilton’s writing in the Federalist Papers noting that the U.S. deliberately took its leader’s power away after four years unlike the monarchy model used by Great Britain. 

“As Alexander Hamilton explained, because the President ‘is to be elected for four years ... there is a total dissimilitude between him and a king of Great-Britain, who is an hereditary monarch, possessing the crown as a patrimony descendible to his heirs forever,’” Thompson’s brief states.  

The committee has faced criticism over its authority and the possible outcome of its investigation. Thompson made clear in an opposition brief to the court that the committee had legislative goals including reforming the Electoral Count Act of 1887. They are also pursuing legal consequences for an executive branch that fails to quickly respond to attacks on Congress and laws that would prevent the executive branch from using government agencies to support false election claims. 

Some of these accusations came directly from Trump who called the committee a political witch hunt after Thompson gave an interview to the Washington Post expressing interest in using information gained from the committee in a criminal referral to the Justice Department. A criminal referral against a former president would be historic but would not necessarily be determinative of whether the department decided to pursue charges.  

Attorneys for Trump and Thompson did not immediately respond to requests for comment.

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