WASHINGTON — The US Supreme Court on Wednesday denied former president Donald Trump’s effort to stop the congressional committee investigating the Jan. 6 insurrection from getting nearly 800 pages of White House records he’d tried to claim were protected by executive privilege.
A majority of justices refused to intervene and disturb lower court decisions that had cleared the way for the National Archives to turn over the collection of contested documents to the committee. Only Justice Clarence Thomas noted a dissent from the court’s decision, indicating he would have granted Trump’s request for a longer-term injunction blocking the committee from getting the documents as the legal fight went forward.
The only thing stopping the Archives from turning over the documents to the committee at this point was a temporary order from a federal appeals court from December that had kept the documents in limbo while Trump tried to convince the justices to step in. That lower court injunction was set to expire once the Supreme Court ruled on Trump’s latest motion.
The Trump-era White House records at issue include presidential diaries, schedules, call logs, handwritten notes, drafts of speeches and correspondence, proposed talking points, “a draft Executive Order on the topic of election integrity,” a memo about potential legal action the federal government could take to challenge President Joe Biden’s wins in key states (the Justice Department filed no such case), and an email chain that involved a state official “regarding election-related issues,” according to descriptions of the documents submitted as part of the legal fight.
Just over two hours after the Supreme Court released its order, Democratic committee chair Bennie Thompson and Republican vice chair Liz Cheney put out a joint statement appearing to confirm that they'd already started receiving documents.
"The Supreme Court’s action tonight is a victory for the rule of law and American democracy," Thompson and Cheney said. "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. Our work goes forward to uncover all the facts about the violence of January 6th and its causes."
Former presidents can try to assert executive privilege over their archived White House records, but the incumbent has to back that claim for it to have legal effect. Biden refused to do so when Trump claimed the privilege in response to the committee’s requests to the Archives. At each stage of the fight in the lower courts, judges were skeptical of Trump’s argument that former officeholders should have broad discretion to take a sitting president to court to challenge their refusal to invoke executive privilege on the predecessor’s behalf.
To fulfill the committee’s request for White House records leading up to the 2020 election and the Jan. 6 insurrection as well as the period immediately after, the national archivist identified sets of records on a rolling basis in what are referred to as tranches. The fight in the district court and the DC Circuit had focused on the first three tranches. Trump didn’t object to all of the documents going to the committee — some have already been turned over — but claimed 763 pages from those three sets of records should be shielded by executive privilege. The Archives was also poised on Wednesday to produce another four pages from an additional tranche over Trump’s objection; the Supreme Court’s decision clears the path for those documents to go to the committee as well.
Trump lost twice in the lower courts in his bid to stop the Jan. 6 committee from getting various categories of his White House records that he maintained should be protected by executive privilege. On Nov. 9, a federal district judge in Washington, DC, rejected Trump’s request for an injunction that would stop the National Archives from turning over the documents. A month later, the US Court of Appeals for the DC Circuit again sided against Trump, upholding the district court’s decision in a 3–0 order.
“On the record before us, former President Trump has provided no basis for this court to override President Biden’s judgment and the agreement and accommodations worked out between the Political Branches over these documents,” DC Circuit Judge Patricia Millett wrote for the appeals court. “Both Branches agree that there is a unique legislative need for these documents and that they are directly relevant to the Committee’s inquiry into an attack on the Legislative Branch and its constitutional role in the peaceful transfer of power.”
The Supreme Court’s Wednesday order stated that because the DC Circuit had concluded that Trump’s legal challenge would fail regardless of his status as a former president, anything that the appeals court had to say about when a former president could sue over executive privilege wasn’t binding going forward. The questions that Trump’s case presented “are unprecedented and raise serious and substantial concerns,” the majority wrote; the order wasn’t signed by any specific justice.
Justice Brett Kavanaugh wrote separately to say that he believed there had to be circumstances where a former president could successfully invoke privilege over their administration records even if the incumbent refused to back it. “Concluding otherwise,” Kavanaugh wrote, “would eviscerate the executive privilege for Presidential communications.”
Although Trump repeatedly lost the legal arguments his lawyers tried to make in court, he succeeded in delaying the committee from getting his records. The Archives were originally set to begin turning over documents on Nov. 12, 2021. Trump filed suit in mid-October, and while he appealed his loss in the district court, the DC Circuit agreed to temporarily block the Archives from taking action. The panel then gave Trump another 14 days to petition the Supreme Court to step in, and once he did that, it extended the pause even further until the justices ruled.
Trump filed an emergency application with the Supreme Court in late December asking for an immediate injunction to stop the Archives from turning over any records he’d claimed executive privilege over until the justices fully considered the case. His request noted that the DC Circuit had specified that its temporary pause only applied to the first three tranches of documents, and that the archivist had identified a fourth tranche and planned to give it to the committee on Jan. 19 barring a court order.
Trump had claimed executive privilege over six pages in the fourth tranche, which featured approximately 550 pages. His lawyers argued that the Supreme Court should block any production of contested documents “for the sake of judicial efficiency and because of the similarity of the legal issues between the various tranches.”
The final brief was filed in the Supreme Court on Jan. 13. On the evening of Jan. 18, the Justice Department submitted a letter to the DC Circuit confirming that the Archives planned to turn over the fourth tranche at the end of the next day unless any court told the agency not to do so. The government’s lawyers wrote that the archivist had been poised to produce that collection shortly after the DC Circuit’s decision in December, but Biden ordered a delay to give Trump time to go back to the lower courts to argue for another injunction.
The Justice Department specified that the archivist was prepared to turn over four of the six pages that Trump had objected to, since two were similar to documents in the first three tranches that remained in limbo.
Trump’s lead attorney Jesse Binnall did not immediately return a request for comment, nor did a spokesperson for the National Archives.
UPDATE
Updated with comment from the Jan. 6 select committee.