On January 6, 2021, following months of efforts to undermine public confidence in the integrity of the 2020 presidential election, then-President Trump implored a crowd of thousands to “fight like hell” or they wouldn’t “have a country anymore.” After regaining control of the Capitol, clearing the debris, and certifying the election results, the House of Representatives formed a committee to investigate the attack that put our democracy at risk. Charged with determining what laws and other measures might be necessary to strengthen our democratic institutions against attempts to undermine them, the House of Representatives Select Committee to Investigate the January 6th Attack requested records of White House communications related to the events of January 6th from the National Archives pursuant to the Presidential Records Act (PRA). On October 18, 2021, former president Donald Trump filed suit against the Select Committee and the National Archives, alleging that the Committee’s request for records is invalid and that his assertion of executive privilege should prevent their release, despite the fact that President Biden determined that asserting executive privilege would undermine the House’s vital investigation into this unprecedented attack. The district court denied Trump’s request for a preliminary injunction, and Trump appealed.

On appeal in the D.C. Circuit, CAC filed an amicus brief in support of the Select Committee on behalf of former Department of Justice officials, arguing that the Committee is entitled to the presidential records that it is seeking. The D.C. Circuit affirmed the district court’s denial of the preliminary injunction. Trump subsequently filed an emergency application in the Supreme Court asking for an injunction while the Court considers Trump’s certiorari petition. CAC filed a second amicus brief on behalf of the former Executive Branch lawyers in opposition to the application for an injunction pending review.

The brief first traced the United States’ rich history of legislative oversight, including inquiries involving both sitting and former presidents. The brief also discussed how incumbent presidents, recognizing the importance of these efforts, have often explicitly waived executive privilege and cooperated with congressional investigations into their administrations.

Second, the brief explained how the text and history of the Presidential Records Act support the Committee’s request for the records. Enacted in the wake of President Nixon’s attempt to cover up his involvement in the Watergate scandal by limiting Congress’s access to his presidential papers, the PRA struck a balance between Congress’s “broad” investigative authority, and the President’s need to receive “full and frank” advice. In doing so, the PRA provided a comprehensive framework for the preservation and disclosure of presidential records. That Act makes clear that presidential papers belong to the public and ensures that a former president cannot forever hide those papers from the other branches of government. Indeed, Congress enacted the PRA in the wake of a scenario that is remarkably similar to the one the court faced: a former president attempting to unilaterally withhold documents relevant to a legitimate congressional investigation. In anticipating that such conflicts might recur in the future, the PRA hewed closely to Supreme Court precedent in ensuring that presidential records would forever be public property with a presumption in favor of disclosure.

Finally, the brief argued that the Committee’s request for documents falls well within Congress’s investigatory powers, and Trump’s arguments to the contrary are without merit. To start, Trump is wrong that separation of powers concerns bar release of the records. While the Supreme Court recently recognized that a court’s analysis of congressional requests for the personal papers of a sitting president should include “special considerations,” such as “whether the asserted legislative purpose warrants the significant step of involving the President and his papers” and the extent of the “burdens imposed on the President by [the] subpoena,” any separation of powers concerns here are significantly lessened given that the Select Committee’s request pertains to the official papers of a former President. And the request plainly has a valid legislative purpose. The requested documents would aid the Committee’s investigations regarding the need to enact laws that would strengthen our democratic institutions against attempts to undermine and abuse them, as well as strengthen security measures at the Capitol. Finally, the brief explained that the court should not prohibit disclosure on executive privilege grounds. While former presidents may retain some ability to assert privilege, the Supreme Court has made clear that executive privilege does not protect former presidents in the same way as sitting presidents because the incumbent president is in the best position to decide when assertions of executive privilege are warranted. Here, President Biden has not asserted the privilege, recognizing that “Congress has a compelling need in service of its legislative functions” for the documents and the conduct they reflect goes “well beyond typical deliberations concerning the proper discharge of the President’s constitutional responsibilities.”

On January 19, 2022, the Supreme Court issued an order rejecting former President Trump’s request to block the National Archives from turning presidential records over to the January 6^th Select Committee. In an unsigned opinion, the Court concluded that it did not need to answer the question of whether a former president could claim executive privilege because the court below had already held that Trump’s documents would not be entitled to protection even if he were a sitting president.