High court urged to shield Jan. 6 records

WASHINGTON — Lawyers for former President Donald Trump on Thursday asked the Supreme Court 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 Joe 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,” 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. 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 Biden and Trump the opportunity to object.

Trump asserted executive privilege, a doctrine meant to protect the confidentiality of presidential communications, over some of the documents.

Biden took a different view in October in declining to assert executive privilege over 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,” White House counsel Dana Remus wrote. “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.”

Trump 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 U.S. District Court in Washington, ruled against 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 former presidents have the right to invoke executive privilege. But she said the privilege is not absolute even when asserted by a sitting president.

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’ 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.”