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Jan. 6 committee slams Trump bid for Supreme Court detour on records subpoena

Attorneys for a select group of lawmakers probing the insurrection say the high court's review of the matter is unwarranted

Representative Bennie Thompson and the select committee investigating the Jan. 6 riot at the U.S. Capitol urged the Supreme Court on Thursday to deny a last-ditch effort from former President Donald Trump to block congressional oversight of his records from the day. 

Thompson said the committee requires Trump’s presidential documents to properly investigate the most significant attack on the Capitol since the War of 1812. The opposition brief notes that it was Trump who invited his supporters to the nation’s capital for an event on Jan. 6, and then encouraged them to march on the Capitol building, after the failure of his other efforts to overturn the 2020 election, including enlisting former Vice President Mike Pence to reject states’ electoral votes.

“Under such circumstances, any inquiry that did not insist on examining Petitioner’s documents and communications would be grossly insufficient,” says the brief, which is signed by the Office of General Counsel and the Institute for Constitutional Advocacy and Protection at the Georgetown University Law Center. 

Pointing to the landmark 1977 case that forced disclosure of the Nixon tapes, the committee contends that Trump has only personal disagreement with the accurate application of Supreme Court precedent by the lower courts — he was unsuccessful both in District Court and before the D.C. Circuit. 

“Although the facts are unprecedented, this case is not a difficult one,” the brief states. 

Thompson also draws on Alexander Hamilton’s writing in the Federalist Papers to remind Trump that the U.S. purposefully took power away from its leaders after four years to distinguish American government from 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,’” the brief states.  

Trump is attempting to block the disclosure of around 800 of his documents concerning the Capitol riot from the committee’s oversight. While former presidents have some ability to keep their documents from public view, President Joe Biden refused to assert executive privilege over the documents. The president and the committee came to an agreement to keep some of the requested documents shielded for national security concerns. 

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White House counsel Dana Remus also told the National Archives that the committee needed the documents to carry out its legislative duties.

“The letter explained that ‘Congress has a compelling need in service of its legislative functions to understand the circumstances that led to these horrific events,’ and ‘the documents shed light on events within the White House on and about January 6 and bear on the Select Committee’s need to understand the facts underlying the most serious attack on the operations of the Federal Government since the Civil War,’” the brief states. 

Trump applied to the high court for relief last week, seeking both a stay and a writ of certiorari.

Thursday's opposition brief details the specific documents that Trump is attempting to shield from the committee, including daily presidential diaries, visitor and call logs, drafts of speeches, and handwritten notes from his chief of staff. The former president is also attempting to withhold talking points from the White House press secretary related to voter fraud and election security, a handwritten note for Jan. 6 and January 2021 generally, and a draft executive order related to election security. 

The committee has faced criticism regarding the limitations of its charge, and Thompson acknowledges this point in a section of the brief that lays out possible legislative actions the committee is looking into while investigating. These could include reform to the Electoral Count Act of 1887, legal consequences for an executive branch that fails to quickly respond to attacks on Congress, or laws that would prevent the executive branch from using government agencies to support false election claims. 

“Petitioner cannot and does not dispute that legislation ‘could be had; on the subjects of the Select Committee’s inquiry,” the brief states. “And the arguments that Petitioner does make are unavailing.” 

On Wednesday Trump filed a supplemental brief asking the court to consider an interview Thompson gave to The Washington Post that he claims proves the committee is collecting information to give to the Justice Department to pursue charges against him. 

“This court has long recognized that, ‘so long as Congress acts in pursuance of its constitutional power, the judiciary lacks authority to intervene on the basis of the motives which spurred the exercise of that power,’” the brief states. “The cited comments do not detract from the fact that the Select Committee is pursuing legislative recommendations that could be informed by the records at issue.” 

While Thompson argues that the court has no reason to review the lower court’s decision, he asks that if they do, they hear arguments in the case as early as February. Separately, the lawmakers also filed a brief opposed to Trump's request for a stay.

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Tyler Merbler/CC BY 2.0

Trump supporters riot in Washington on Jan. 6, 2021, during of a joint session of Congress to certify the results of the 2020 presidential election.