Trump push to deny records to Capitol riot committee ‘insufficient to create any question worthy’ of SCOTUS review, House lawyers say

Lawyers for the January 6th select committee say ‘any inquiry that did not insist on examining ... documents and communications’ from the Trump White House would be ‘grossly insufficient’

Lawyers for the House of Representatives have urged the Supreme Court to deny former president Donald Trump’s request to reverse a District of Columbia appellate court decision denying his push to keep White House records out of the hands of the House select committee investigating the 6 January insurrection.

On 9 December, a three-judge panel of the US Court of Appeals for the District of Columbia upheld a district court decision denying Mr Trump’s request to enjoin the National Archives and Records Administration from turning over records created in the White House in the days leading up to and including 6 January, the day a pro-Trump mob attacked the US Capitol in hopes of preventing Congress from certifying President Joe Biden’s 2020 election victory.

Mr Trump first filed suit in October against Representative Bennie Thompson, Archivist of the United States David Ferriero, and the House Select Committee to Investigate the January 6th Attack on the Capitol after Mr Biden declined to assert executive privilege – a legal doctrine which shields communications between and among a president and his advisers – over documents requested by Mr Thompson and the select committee.

His attorneys have argued that allowing Mr Biden to exercise his discretion not to invoke the privilege and letting the committee access the documents – which include “daily Presidential diaries, schedules, visitor logs, activity logs, call logs, specifically for or including January 6; drafts of speeches, remarks, and correspondence concerning the events of that day; and handwritten notes from the files of the Chief of Staff concerning the events of that day” would damage the executive branch and claimed the committee’s request serves no legitimate legislative purpose.

The three-judge panel ruled that District Judge Tanya Chutkan correctly held that the committee’s “compelling and urgent need for the Presidential records at issue in this case – together with the President’s determination that disclosure is in the best interests of the Nation – far outweighs” Mr Trump’s “generalized assertion that the records should be withheld for confidentiality reasons”. The panel also rejected Mr Trump’s claims that Mr Biden’s decision to release the records was politically motivated and his assertion that the committee’s request did not serve a valid legislative purpose.

In documents filed with the Supreme Court earlier this week, Mr Trump’s attorneys argued that statements made in recent interviews by Mr Thompson – in which the Mississippi Democrat said the committee could refer any illegal conduct it discovers to the Justice Department – negate any legislative purpose because Congress does not have the power to conduct law enforcement investigations.

But in a response filed on Thursday, counsel for the House of Representatives Doug Letter and his colleagues said the case at hand is “not a difficult one” and urged the Supreme Court to deny Mr Trump’s demand to hear his appeal.

“Although the facts are unprecedented, this case is not a difficult one. Petitioner attempts to overturn the current President’s reasonable determination that the Select Committee is entitled to three tranches of Presidential records responsive to its request. The court of appeals correctly applied this Court’s precedents to reject Petitioner’s challenge under every heightened standard he claimed should apply, relying in part on the fact that Petitioner did not make any particularized objections to production of the specific Presidential records before the court,” they wrote. “To the extent any novel questions linger in the background, this case would be a poor vehicle to address them”.

The committee’s attorneys further argued that Mr Trump’s claims present a “poor vehicle” for addressing questions of when a former president’s claim of executive privilege can overcome an incumbent president’s determination to the contrary because the two courts that have addressed his claims followed both found that the circumstances under which Mr Biden chose not to invoke executive privilege meet the standards laid out in cases cited by Mr Trump.

Mr Trump’s “real complaint is that he disagrees with how the court of appeals applied this Court’s precedents,” they wrote. “But that claim is insufficient to create any question worthy of this Court’s review”.

Responding to Mr Trump’s attorneys’ claim about Mr Thompson’s public statements, the House’s lawyers cited numerous cases in which the court has recognized that the judiciary “lacks authority to intervene on the basis of the motives which spurred the exercise” of congress’ authority “so long as Congress acts in pursuance of its constitutional power”.

They added that the former president’s assertion that the committee’s document request does not meet standards laid out in the Presidential Records Act is “likewise misguided”.

“To properly investigate the events of January 6, the Select Committee requires Petitioner’s records. Petitioner led a months-long effort to overturn the Presidential election, following ex- tensive efforts to undermine it. Ultimately, he tried to enlist the Vice President to improperly reject States’ electoral votes; summoned supporters to Washington, D.C., for a ‘wild’ event on January 6; and delivered a speech immediately preceding the attack that encouraged the crowd to march to the Capitol, insisting he could remain President and using rhetoric such as ‘We fight like Hell’ and ‘you’ll never take back our country with weakness,’” they wrote.

“Under such circumstances, any inquiry that did not insist on examining Petitioner’s documents and communications would be grossly insufficient”.

The lawyers concluded by asking the court to handle the case expeditiously, citing the expiration of the select committee’s charter when the 118th Congress convenes on 3 January 2023.