Trump Sues to Block Release of White House Papers to Jan. 6 Inquiry

Trump Sues to Block Release of White House Papers to Jan. 6 Inquiry 1

The case raises novel constitutional questions about the scope of an ex-president’s executive privilege powers if the current president disagrees.

WASHINGTON — Former President Donald J. Trump sued Congress and the National Archives on Monday, seeking to block the disclosure of White House files related to his actions and communications surrounding the Jan. 6 Capitol riot.

In a 26-page complaint, a lawyer for Mr. Trump argued that the materials must remain secret as a matter of executive privilege. He said the Constitution gives the former president the right to demand their confidentiality even though he is no longer in office — and even though President Biden has refused to assert executive privilege over them.

The lawsuit touches off what is likely to be a major legal battle between Mr. Trump and the House committee investigating the attack, in which a mob of his supporters stormed the Capitol seeking to disrupt Congress’s counting of electoral votes to formalize Mr. Biden’s victory. Its outcome will carry consequences for how much the panel can uncover about Mr. Trump’s role in the riot, pose thorny questions for the Biden administration and potentially forge new precedents about presidential prerogatives and the separation of powers.

“In a political ploy to accommodate his partisan allies, President Biden has refused to assert executive privilege over numerous clearly privileged documents requested by the committee,” Jesse R. Binnall, Mr. Trump’s lawyer, wrote in his complaint.

The leaders of the committee, Representative Bennie Thompson, Democrat of Mississippi, and Representative Liz Cheney, Republican of Wyoming, condemned Mr. Trump’s suit as “nothing more than an attempt to delay and obstruct our probe.”

“It’s hard to imagine a more compelling public interest than trying to get answers about an attack on our democracy and an attempt to overturn the results of an election,” wrote Mr. Thompson, the committee’s chairman, and Ms. Cheney, the vice chairwoman.

The committee has demanded detailed records about Mr. Trump’s every movement and meeting on the day of the assault. Its demands, sent to the National Archives and Records Administration, include material about any plans hatched within the White House or other federal agencies to derail the Electoral College vote count by Congress.

In a pair of letters this month to the National Archives, which is the custodian of White House papers from Mr. Trump’s tenure, Mr. Biden’s top White House lawyer, Dana Remus, made clear that the current president does not think a claim of executive privilege is legitimate under these circumstances.

“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,” Ms. Remus wrote.

Presidents tend to jealously guard executive privilege, which can shield from disclosure White House deliberations or documents involving official presidential duties. But by pitting the views of a former president seeking to protect the confidentiality of White House documents from his administration against the views of the incumbent office holder, the lawsuit could forge new constitutional ground, legal specialists said.

“The book of prior decisions by the courts about presidential disagreements over confidentiality is an empty book,” said Peter Shane, an Ohio State University law professor and co-author of a casebook on separation of powers law. “I don’t think there has ever been such a case adjudicated by a court.”

Mr. Trump’s lawsuit names as defendants Mr. Thompson and David S. Ferriero, the head of the National Archives.

At issue is what the former president was doing and saying before and during the run-up to the Jan. 6 riot, when throngs of his supporters breached the Capitol, hunting for lawmakers and Vice President Mike Pence in an effort to get them to overturn the election, and brutalizing police officers in the name of Mr. Trump.

Mr. Trump, who had engaged in an intensive effort to use the Justice Department to invalidate the election results, and had privately pushed Mr. Pence to do so himself, had urged his followers to converge on Washington for a “Stop the Steal” rally that day. At that gathering near the White House, he told them that they needed to “fight much harder” against “bad people” and “show strength” at the Capitol, and that “very different rules” applied, among other things.

The House impeached him for inciting the riot, but the Senate acquitted him.

Among the documents the House investigators are seeking are:

  • calendars, schedules and movement logs about virtual or in-person meetings or events Mr. Trump attended, including who was present.

  • any documents and communications between the White House and some of Mr. Trump’s allies most involved in trying to undermine the election, including Stephen K. Bannon, his former chief strategist; Michael T. Flynn, his former national security adviser; Rudolph W. Giuliani, who was his personal lawyer; and his longtime associate Roger J. Stone Jr.

  • White House communications with Mike Lindell, the MyPillow chief executive and confidante of Mr. Trump, and the lawyer Sidney Powell, both of whom pushed lies and conspiracy theories about widespread election fraud.

  • records on extremist groups and militias that were present at the Capitol that day, including QAnon, the Proud Boys, Stop the Steal, the Oath Keepers and the Three Percenters.

Mr. Trump has told former aides and advisers that they should not cooperate because the information requested is privileged. On Tuesday, the select committee is expected to vote to recommend that Mr. Bannon face criminal contempt charges for defying a subpoena. That would send the citation to the full House, where Democrats have the votes to approve it and refer the matter to the Justice Department with a request for legal action.

While executive privilege is not mentioned in the Constitution, the Supreme Court has recognized that presidents have some constitutional powers to keep confidential information about their deliberations with their advisers and high-level executive branch activities related to the performance of their constitutional duties.

The idea is that a zone of secrecy is necessary to protect the institution because fear of future exposure could chill the candor of deliberations and advice.

While Mr. Trump is no longer the custodian of the presidency, his lawsuit hammered at that theme, reserving particular outrage for a demand for private files related to Mr. Trump’s public remarks and tweets that day. The premise that Congress could obtain such materials, wrote Mr. Trump’s lawyer, Mr. Binnall, “would destroy the very fabric of our constitutional separation of powers.”

But in her correspondence with the National Archives, Ms. Remus, the White House counsel, wrote that Mr. Biden had determined that under the circumstances — the need for a “full accounting” of an “unprecedented effort to obstruct the peaceful transfer of power” to “ensure nothing similar ever happens again” — keeping such documents secret was not in the best interests of the United States.

Mr. Trump specifically objected to the release of 47 documents sought by the committee, citing “presidential communications and deliberative process privileges.”

There are very few definitive guideposts about how far a president’s power to keep information secret extends, and where Congress’s constitutional powers to perform oversight of the government prevail. That is because historically, most such disputes have been resolved through negotiation and accommodation.

Mr. Trump, however, has long pursued a strategy of running out the clock in courts, vowing to stonewall “all” congressional subpoenas when he was in office. Now out of office, he appears set to push that strategy in a new direction, raising the possibility of another drawn-out series of court fights and appeals to higher courts.

In her second letter to Mr. Ferriero, who is part of the executive branch, Ms. Remus said Mr. Biden had instructed him to turn over the Trump-era documents sought by the committee 30 days after notifying Mr. Trump of the decision, “absent any intervening court order.”

The Supreme Court has suggested that former presidents wield some residual executive privilege powers. In a 1977 case challenging a law related to the control of White House files from former President Richard M. Nixon’s administration, the court said Nixon could make a claim of executive privilege even though he was out of office and his successors, Gerald R. Ford and Jimmy Carter, did not support it.

Nixon lost that case, but the court suggested that he might be able to block the release of some of his papers in the future. The ruling offered few details, and Nixon never sought to do so.

In Mr. Trump’s complaint, Mr. Binnall, his lawyer, signaled a willingness to fight to the Supreme Court.

The committee’s request, he wrote, “amounts to nothing less than a vexatious, illegal fishing expedition openly endorsed by Biden and designed to unconstitutionally investigate President Trump and his administration.”