WASHINGTON — Lawyers for former President Donald J. Trump asked the Supreme Court on Thursday to block the release of White House records concerning the Jan. 6 attack on the Capitol, arguing that he had a constitutional right to shield the materials from Congress even though President Biden declined to invoke executive privilege over them.
“The disagreement between an incumbent president and his predecessor from a rival political party 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,” Mr. Trump’s lawyers told the court.
The case raises novel constitutional questions about the separation of powers and the power of a president no longer in office. Mr. Trump’s lawyers asked the justices to block the release of the records while they decide whether to hear his appeal.
A special House committee investigating the attacks sought the records from the National Archives, which gave both Mr. Biden and Mr. Trump the opportunity to object.
Mr. Trump asserted executive privilege, a doctrine meant to protect the confidentiality of presidential communications, over some of the documents.
“Congress may not rifle through the confidential, presidential papers of a former president to meet political objectives or advance a case study,” his lawyers told the justices in an emergency application.
“Even if the committee had an appropriate legislative purpose for pursuing President Trump’s confidential records, their request is strikingly broad,” the application said. “Indeed, they seek the president’s schedule, call logs, legal documents and briefing materials. They want to forage for information by reviewing every White House email concerning President Trump on Jan. 6, 2021. They even want campaign polling data dating to April 2020.”
Understand the U.S. Capitol Riot
On Jan. 6, 2021, a pro-Trump mob stormed the Capitol.
“These sweeping requests are indicative of the committee’s broad investigation of a political foe, divorced from any of Congress’s legislative functions,” the application said.
Mr. 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 Dana A. Remus, the White House counsel. “The constitutional protections of executive privilege should not be used to shield, from Congress or the public, information that reflects a clear and apparent effort to subvert the Constitution itself.”
If the court follows its usual practices, it will rule on Mr. Trump’s application in the coming weeks. A decision refusing to block release of the records would effectively end the case. Should the court agree to consider Mr. Trump’s appeal, the justices would typically hear arguments in the spring and issue a decision by late June.
In their own filing on Thursday, lawyers for the House committee said they would respond next week to both Mr. Trump’s application to temporarily block release of the records and his request that the court hear his appeal. They asked the justices for “expedited consideration” of the case.
Mr. Trump had sued to block release of the documents, saying that the House committee had no valid legislative reason to seek them.
Judge Tanya S. Chutkan, of the Federal District Court in Washington, ruled against Mr. Trump. A unanimous three-judge panel of the U.S. Court of Appeals for the District of Columbia affirmed that ruling.
Judge Patricia A. 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 asserted by a sitting president.
In 1974, for instance, the Supreme Court unanimously ruled that President Richard M. Nixon had to comply with a trial subpoena seeking tapes of his conversations in the Oval Office, rejecting his claims of executive privilege.
Judge Millett wrote that several factors warranted disclosure of the documents notwithstanding Mr. 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.”
Key Figures in the Jan. 6 Inquiry
Michael Flynn. Mr. Trump’s former national security adviser attended an Oval Office meeting on Dec. 18 in which participants discussed seizing voting machines and invoking certain national security emergency powers. Mr. Flynn has filed a lawsuit to block the panel’s subpoenas.
It is not unusual for sitting presidents to waive executive privilege, Judge Millett wrote. Mr. 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 authorized providing documents, including excerpts from his diaries, to congressional committees investigating the Iran-contra affair. President George W. Bush and Vice President Dick Cheney were questioned for hours by a commission investigating the Sept. 11 attacks.
Mr. Trump’s lawyers said he 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.”
Judge 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’s 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.”
“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,” she wrote.
“The events of Jan. 6, 2021, marked the most significant assault on the Capitol since the War of 1812,” she wrote. “The building was desecrated, blood was shed and several individuals lost their lives.”
Mr. Trump’s objections to the release of information concerning the rally, its aftermath and related activities, Judge Millett wrote, were vague and inadequate.
“Mr. Trump has made no record nor even hinted to this court what context or information has been overlooked or what information could override President Biden’s calculus,” she wrote. “We cannot just presume it.”
In their emergency application, Mr. Trump’s lawyers said the stakes in the case were very high.
“Producing these privileged documents” they wrote, “would irreparably harm the institution of the presidency.”