Voting Rights and Democracy

Trump v. Thompson (January 6 Select Committee Litigation)

In Trump v. Thompson, the Court of Appeals for the D.C. Circuit is considering whether to allow the National Archives to release to a House Committee presidential records that the committee is seeking as part of its investigation into the January 6th attack on the Capitol.

Case Summary

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.  The D.C. Circuit entered an administrative injunction preventing release of the records and ordered expedited briefing on Trump’s appeal.

On November 22, 2021, CAC filed an amici brief on behalf of former Department of Justice officials in support of the Select Committee, arguing that the Committee is entitled to the presidential records that it is seeking.

The brief first traces the United States’ rich history of legislative oversight, including inquiries involving both sitting and former presidents. The brief also discusses how incumbent presidents, recognizing the importance of these efforts, have often explicitly waived executive privilege and cooperated with congressional investigations into their administrations. Consistent with this long history of congressional investigations, the Supreme Court has repeatedly affirmed Congress’s broad power to investigate and has reiterated that the scope of that power is co-extensive with the scope of Congress’s power to legislate. For instance, the Supreme Court has held that Congress’s power to investigate encompasses “inquiries concerning the administration of existing laws as well as proposed or possibly needed statutes” and “surveys of defects in our social, economic or political system for the purpose of enabling the Congress to remedy them.”

Second, the brief explains 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 faces today: 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 argues 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 explains 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.”

Case Timeline

  • November 22, 2021

    CAC files amici curiae brief on behalf of former Department of Justice officials

    D.D.C. Amici Brief
  • November 30, 2021

    Court of Appeals for the D.C. Circuit will hear oral argument

More from Voting Rights and Democracy

Voting Rights and Democracy
U.S. Supreme Court

Federal Election Commission v. Ted Cruz for Senate

In Federal Election Commission v. Ted Cruz for Senate, the Supreme Court is considering whether a law that prevents candidates for federal office from using more than $250,000 in campaign funds raised after an election...
Voting Rights and Democracy
August 27, 2021

Analysis: Biden’s Supreme Court losses prompt more ‘shadow docket’ scrutiny

Reuters
WASHINGTON, Aug 27 (Reuters) - President Joe Biden's administration was dealt a double blow by...
By: Elizabeth B. Wydra, By Lawrence Hurley
Voting Rights and Democracy
August 17, 2021

The conservative Supreme Court majority is issuing some of its most extreme rulings in the shadows

Daily Kos
As bad as the U.S. Supreme Court's regular decisions were this year, what it has done in...
By: David H. Gans, By Joan McCarter
Voting Rights and Democracy
July 8, 2021

Conservative justices make it clear: they won’t stop anti-democratic voting laws

The Guardian
Happy Thursday, In a hugely consequential ruling last week, the US supreme court upheld two...
By: David H. Gans
Voting Rights and Democracy
July 7, 2021

Selective originalism and selective textualism: How the Roberts court decimated the Voting Rights Act

SCOTUSblog
The Roberts court continues to issue rulings that harm our democracy. On Thursday, it once...
By: David H. Gans
Voting Rights and Democracy
June 30, 2021

Supreme Court ruling in Arizona case expected to have national impact

Arizona Public Radio
WASHINGTON – Both sides in the election law debate agree on at least one thing:...
By: David H. Gans, By Alyssa Marksz, By Brooke Newman