No. 21-
`
`In the
`Supreme Court of the United States
`
`DONALD J. TRUMP, IN HIS CAPACITY AS THE 45TH
`PRESIDENT OF THE UNITED STATES,
`
`Petitioner,
`
`v.
`
`BENNIE G. THOMPSON, IN HIS OFFICIAL
`CAPACITY AS CHAIRMAN OF THE UNITED STATES
`HOUSE SELECT COMMITTEE TO INVESTIGATE
`THE JANUARY 6TH ATTACK ON THE UNITED
`STATES CAPITOL, et al.,
`
`Respondents.
`
`On PetitiOn fOr a Writ Of CertiOrari tO the United
`StateS COUrt Of aPPealS fOr the dC CirCUit
`
`PETITION FOR A WRIT OF CERTIORARI
`
`JustIn ClaRk
`eleCtIons, llC
`1050 Connecticut Avenue, NW,
`Suite 500
`Washington, DC 20036
`(202) 987-9944
`
`Jesse R. BInnall
`Counsel of Record
`BInnall law GRoup, pllC
`717 King Street, Suite 200
`Alexandria, VA 22314
`(703) 888-1943
`jesse@binnall.com
`
`309776
`
`Counsel for Petitioner
`
`A
`
`(800) 274-3321 • (800) 359-6859
`
`
`
`In the
`Supreme Court of the United States
`
`DONALD J. TRUMP, IN HIS CAPACITY AS THE 45TH
`PRESIDENT OF THE UNITED STATES,
`
`Petitioner,
`
`v.
`
`BENNIE G. THOMPSON, IN HIS OFFICIAL
`CAPACITY AS CHAIRMAN OF THE UNITED STATES
`HOUSE SELECT COMMITTEE TO INVESTIGATE
`THE JANUARY 6TH ATTACK ON THE UNITED
`STATES CAPITOL, et al.,
`
`Respondents.
`
`On PetitiOn fOr a Writ Of CertiOrari tO the United
`StateS COUrt Of aPPealS fOr the dC CirCUit
`
`PETITION FOR A WRIT OF CERTIORARI
`
`JustIn ClaRk
`eleCtIons, llC
`1050 Connecticut Avenue, NW,
`Suite 500
`Washington, DC 20036
`(202) 987-9944
`
`Jesse R. BInnall
`Counsel of Record
`BInnall law GRoup, pllC
`717 King Street, Suite 200
`Alexandria, VA 22314
`(703) 888-1943
`jesse@binnall.com
`
`309776
`
`Counsel for Petitioner
`
`A
`
`(800) 274-3321 • (800) 359-6859
`
`
`
`i
`
`QuEsTION PREsENTEd
`
`The United States House of Representatives’ Select
`Committee to Investigate the January 6th Attack on the
`United States Capitol issued a “sweeping” request, seeking
`many of President Trump’s confidential presidential
`records. The request implicates important constitutional
`and statutory concerns arising from the Presidential
`Records Act, separation of powers, and executive
`privilege. Nevertheless, the Biden Administration now
`seeks to produce those records to the Committee, and
`will do so, absent court intervention.
`
`The question presented is:
`
`Whether the Committee’s records request violates
`the Constitution or laws of the United States entitling
`President Trump to a preliminary injunction prohibiting
`production of the records to the Committee.
`
`
`
`ii
`
`PARTIEs TO ThE PROCEEdINg ANd RElATEd
`PROCEEdINgs
`
`The parties to the proceeding below are as follows:
`
`Petitioner is Donald J. Trump, in his capacity as the
`45th President of the United States. He was the plaintiff
`in the district court and appellant in the court of appeals.
`
`Respondents are Bennie G. Thompson, in his capacity
`as Chairman of the United States House Select Committee
`to Investigate the January 6th Attack on the United States
`Capitol; the United States House Select Committee to
`Investigate the January 6th Attack on the United States
`Capitol; David Ferriero, in his capacity as Archivist of the
`United States; and the National Archives and Records
`Administration.
`
`The related proceedings below are:
`
`1. Donald J. Trump v. Bennie G. Thompson, et al.,
`No. 21-cv-2769 (TSC) (D.D.C.) – Order denying
`preliminary injunction entered on November 9,
`2021; and
`
`2. Donald J. Trump v. Bennie G. Thompson, et al.,
`No. 21-5254 (D.C. Cir.) – Judgment entered on
`December 9, 2021.
`
`
`
`iii
`
`QUESTION PRESENTED . . . . . . . . . . . . . . . . . . . . . . . i
`
`PA RTIES TO THE PROCEEDING A ND
` RELATED PROCEEDINGS . . . . . . . . . . . . . . . . . . ii
`
`TABLE OF CONTENTS. . . . . . . . . . . . . . . . . . . . . . . . . iii
`
`TABLE OF APPENDICES . . . . . . . . . . . . . . . . . . . . . . .v
`
`TABLE OF CITED AUTHORITIES . . . . . . . . . . . . . . vi
`
`OPINIONS BELOW. . . . . . . . . . . . . . . . . . . . . . . . . . . . . .1
`
`JURISDICTION . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .1
`
`CONSTITU TIONA L A ND STATU TORY
` PROVISIONS INVOLVED . . . . . . . . . . . . . . . . . . . . .1
`
`INTRODUCTION. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .2
`
`STATEMENT . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .6
`
`I. Background . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .6
`
`II. Proceedings Below . . . . . . . . . . . . . . . . . . . . . . . .10
`
`REASONS FOR GRANTING THE PETITION. . . . .11
`
`TABLE OF CONTENTS
`
`Page
`
`
`
`iv
`
`I. The Committee’s request raises novel and
`important questions of law that the Court
`should resolve. . . . . . . . . . . . . . . . . . . . . . . . . . . . .12
`
`
`
`II. The Committee’s request is facially invalid . . .15
`
`A. The Presidential Records Act, its
`i mplement i ng reg u lat ions, a nd
`constitutional separation of powers
`all require a legislative purpose and
`the absence of alternatives prior to
`requesting presidential records . . . . . . . . .15
`
`
`
`B. The request violates this Court’s
`Mazars decision and the Separation of
`Powers . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .19
`
`
`
`C. The records at issue are protected by
`executive privilege and the Committee
`has not made a sufficient showing
`of need to invade that privilege . . . . . . . . .22
`
`
`
`D. The equitable injunctive factors favor
`President Trump and weigh heavily
`in favor of review by the Court.. . . . . . . . . .28
`
`
`
`III. This case presents an appropriate vehicle to
`
`resolve these weighty issues . . . . . . . . . . . . . . . .33
`
`CONCLUSION . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .34
`
`Table of Contents
`
`Page
`
`
`
`v
`
`APPENDIx A — OPINION OF THE UNITED
`STATES COURT OF APPEALS FOR THE
`DISTRICT OF COLUMBIA CIRCUIT,
` FILED DECEMBER 9, 2021 . . . . . . . . . . . . . . . . . . .1a
`
`APPENDIx B — MEMORANDUM OPINION
`OF THE UNITED STATES DISTRICT
`C O U R T F O R T H E DI S T R I C T O F
` COLUMBIA, FILED NOVEMBER 9, 2021 . . . . .78a
`
`A P P E N D I x C — R E L E V A N T
`CONSTITUTIONAL AND STATUTORY
` PROVISIONS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .127a
`
`TABLE OF APPENDICES
`
`Page
`
`
`
`vi
`
`CAsEs
`
`Am. Trucking Associations, Inc. v.
`City of Los Angeles,
`559 F.3d 1046, 1059 (9th Cir. 2009) . . . . . . . . . . . . . .29
`
`
`
`Ass’n of Cmty. Orgs. for Reform Now (ACORN)
`v. FEMA,
`463 F. Supp. 2d 26 (D.D.C. 2006) . . . . . . . . . . . . . . . .31
`
`
`
`Cheney v. U.S. District Court for D.C.,
`
`542 U.S. 367 (2004). . . . . . . . . . . . . . . . . . . . . . . . .14, 21
`
`Clinton v. Jones,
`
`520 U.S. 681 (1997). . . . . . . . . . . . . . . . . . . . . . . . .14, 15
`
`Council on American-Islamic Relations v.
`Gaubatz,
`667 F. Supp. 2d 67 (D.D.C. 2009) . . . . . . . . . . . . . . . .29
`
`
`
`Elrod v. Burns,
`
`427 U.S. 347 (1976) . . . . . . . . . . . . . . . . . . . . . . . . . . . .29
`
`Fund for Animals v. Norton,
`
`281 F. Supp. 2d 209 (D.D.C. 2003) . . . . . . . . . . . . . . .32
`
`Gordon v. Holder,
`
`721 F.3d 638 (2013). . . . . . . . . . . . . . . . . . . . . . . . . . . .31
`
`In re Ford Motor Co.,
`
`110 F.3d 954 (3d Cir. 1997) . . . . . . . . . . . . . . . . . . . . .29
`
`TABLE OF CITED AUTHORITIES
`
`Page
`
`
`
`vii
`
`In re Sealed Case
` No. 98-3077, 151 F.3d 1059 (D.C. Cir. 1998) . . . . . . .29
`
`In re Sealed Case,
`
`121 F.3d 729 (D.C. Cir. 1997) . . . . . . . . . . . . . . . . . . .23
`
`Judicial Watch, Inc. v. Dep’t of Justice,
`
`365 F.3d 1108 (D.C. Cir. 2004) . . . . . . . . . . . . . . . . . .23
`
`Kilbourn v. Thompson,
`
`103 U.S. 168 (1880) . . . . . . . . . . . . . . . . . . . . . . . . . . . .20
`
`Metro. Life Ins. Co. v. Usery,
`
`426 F. Supp. 150 (D.D.C. 1976) . . . . . . . . . . . . . . . . . .30
`
`Nixon v. Adm’r of Gen. Servs. GSA,
`433 U.S. 425 (1977). . . . . . . . . . . . . . . . . . . . . . . passim
`
`
`Nixon v. Fitzgerald,
`
`457 U.S. 731 (1982) . . . . . . . . . . . . . . . . . . . . . . . . . . . .14
`
`Nken v. Holder,
`
`556 U.S. 418 (2009). . . . . . . . . . . . . . . . . . . . . . . . . . . .31
`
`O’Donnell Const. Co. v. Dist. of Columbia,
`
`963 F.2d 420 (D.C. Cir. 1992) . . . . . . . . . . . . . . . . . . .31
`
`PepsiCo, Inc. v. Redmond,
`
`1996 WL 3965 (N.D. Ill. 1996) . . . . . . . . . . . . . . . . . .30
`
`Cited Authorities
`
`Page
`
`
`
`viii
`
`Providence Journal Co. v. FBI,
`
`595 F.2d 889 (1st Cir. 1979) . . . . . . . . . . . . . . . . . .29, 32
`
`Quinn v. United States,
`
`349 U.S. 155 (1955). . . . . . . . . . . . . . . . . . . . . . . . . . . .19
`
`Senate Select Comm. on Presidential Campaign
`Activities v. Nixon,
`498 F.2d 725 (D.C. Cir. 1974). . . . . . . . . . . . . . . . .12, 17
`
`
`
`Shapiro v. U.S. Dep’t of Justice,
`
`2016 WL 3023980 (D.D.C. May 25, 2016) . . . . . . . . .32
`
`Trump v. Mazars USA, LLP,
`140 S. Ct. 2019 (2020). . . . . . . . . . . . . . . . . . . . . passim
`
`
`Trump v. Thompson,
` Civil Action No. 21-5254, 2021 WL 5832713
`
`(D.C. Cir. Dec. 9, 2021). . . . . . . . . . . . . . . . . . . . . . .1, 11
`
`Trump v. Thompson,
` Civil Action No. 21-CV-2769, 2021 WL 5218398
`
`(D.D.C. Nov. 9, 2021) . . . . . . . . . . . . . . . . . . . . . . . .1, 10
`
`United States v. Nixon,
`418 U.S. 683 (1974) . . . . . . . . . . . . . . . . . . . . . . . passim
`
`
`Watkins v. United States,
`
`354 U.S. 178 (1957) . . . . . . . . . . . . . . . . . . . . . . . . .19, 20
`
`Cited Authorities
`
`Page
`
`
`
`ix
`
`Youngstown Sheet & Tube Co. v. Sawyer,
`
`343 U.S. 579 (1952) . . . . . . . . . . . . . . . . . . . . . . . . . . . . .6
`
`sTATuTEs ANd OThER AuThORITIEs
`
`28 U.S.C. § 1254(1). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .1
`
`U.S. Const. art I, § 8 . . . . . . . . . . . . . . . . . . . . . . . .1, 18, 20
`
`U.S. Const. art. II, § 1, cl. 1 . . . . . . . . . . . . . . . . . . . . . . . .1
`
`44 U.S.C. § 2201 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .8
`
`44 U.S.C. § 2202. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .8
`
`44 U.S.C. § 2203. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .8
`
`44 U.S.C. § 2204. . . . . . . . . . . . . . . . . . . . . . . . . . . . passim
`
`44 U.S.C. § 2205. . . . . . . . . . . . . . . . . . . . . . . . . . .1, 4, 8, 13
`
`44 U.S.C. § 2205(2) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .8
`
`44 U.S.C. § 2205(2)(A). . . . . . . . . . . . . . . . . . . . . . . . . . . . .8
`
`44 U.S.C. § 2205(2)(B). . . . . . . . . . . . . . . . . . . . . . . . . . . . .8
`
`44 U.S.C. § 2205(2)(C) . . . . . . . . . . . . . . . . . . . . . . . .4, 8, 15
`
`44 U.S.C. § 2206. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .8
`
`Cited Authorities
`
`Page
`
`
`
`x
`
`44 U.S.C. § 2207. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .8
`
`44 U.S.C. § 2208. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .8, 28
`
`44 U.S.C. § 2209. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .8
`
`36 C.F.R. § 1270.44 . . . . . . . . . . . . . . . . . . . . . . . . . . 28, 33
`
`36 C.F.R. § 1270.44(c) . . . . . . . . . . . . . . . . . . . . . . . . . . . . .8
`
`36 C.F.R. § 1270.44(d) . . . . . . . . . . . . . . . . . . . . . . . . . . . . .8
`
`36 C.F.R. § 1270.44(f)(1) . . . . . . . . . . . . . . . . . . . . . . . . . . .9
`
`36 C.F.R. § 1270.44(f)(3) . . . . . . . . . . . . . . . . . . . . . . . . . . .9
`
`ABC News, ‘This Week’ Transcript 12-19-21:
`Dr. Anthony Fauci & Rep. Adam Kinzinger,
` ABC News (Dec. 19, 2021) . . . . . . . . . . . . . . . . . . . . .17
`
`CNN Politics, Kinzinger says January 6 panel
`is investigating Trump’s involvement in
`i n s u r r e c t i o n , C a bl e Ne w s Ne t w o rk
`(Dec. 19, 2021). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .17
`
`
`
`D.C. Cir. Rule 41(a)(1) . . . . . . . . . . . . . . . . . . . . . . . . . . . .11
`
`Exec. Order No. 13489, 74 Fed. Reg. 4669
`
`(Jan. 21, 2009) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .9
`
`Cited Authorities
`
`Page
`
`
`
`xi
`
`Fed. R. App. P. 41(b) . . . . . . . . . . . . . . . . . . . . . . . . . . . . .11
`
`H. Res. 503 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .6, 7, 22
`
`Late Night with Seth Meyers, Rep. Adam Schiff
`Says It Was Torture Listening to Kevin
` McCarthy’s Speech, YouTube (Nov. 22, 2021). . . 17, 20
`
`Sup. Ct. Rule 10(c) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .12
`
`Tobi M. E. Young, Ethics After the Executive
`Branch: The Perspective of the Office of the
`Former President, 22 tex. Rev. l. & pol. 237
`(2018) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .13
`
`
`
`Cited Authorities
`
`Page
`
`
`
`1
`
`Donald J. Trump, in his capacity as the 45th President
`of the United States, respectfully petitions for a writ of
`certiorari to review the judgment of the United States
`Court of Appeals for the District of Columbia Circuit.
`
`OPINIONs bElOW
`
`The district court’s opinion denying the preliminary
`injunction is reported at Trump v. Thompson, - - - F.
`Supp. 3d - - -, 2021 WL 5218398 (D.D.C. Nov. 9, 2021),
`and is reproduced at Appendix (“App.”) B, at 78a-126a.
`The D.C. Circuit’s opinion affirming the district court
`is reported at Trump v. Thompson, - - - F.4th - - -, 2021
`WL 5832713 (D.C. Cir. Dec. 9, 2021), and is reproduced
`at App. A, at 1a-77a.
`
`JuRIsdICTION
`
`The D.C. Circuit issued its opinion on December 9,
`2021. Petitioner did not seek a rehearing. The D.C. Circuit
`requested that Applicant bring a petition for certiorari
`and application for stay pending appeal within 14 days of
`their order. Applicant now brings this petition on the 14th
`day. This Court has jurisdiction under 28 U.S.C. § 1254(1).
`
`CONsTITuTIONAl ANd sTATuTORy
`PROvIsIONs INvOlvEd
`
`The constitutional and statutory provisions involved
`in this case are: U.S. Const. art I, § 8; U.S. Const. art.
`II, § 1, cl. 1; and the Presidential Records Act of 1978,
`specifically 44 U.S.C. §§ 2204-2205, appended at App. C,
`at 127a-148a.
`
`
`
`2
`
`INTROduCTION
`
`The rule of law embodied in this Court’s binding
`precedent and our Constitution’s separation of powers
`preserves ordered liberty and protects the rights of all
`Americans. This case involves important constitutional,
`statutory, and precedential limits placed on congressional
`requests for presidential records, including by the
`Presidential Records Act, this Court’s landmark decision
`in Trump v. Mazars USA, LLP, 140 S. Ct. 2019 (2020), and
`the constitutionally rooted executive privilege.
`
`Congress limited its own access to Presidential
`records when it adopted the Presidential Records Act,
`a law it now stubbornly refuses to follow. The Executive
`adopted implementing regulations and an executive order
`reasonably regulating access to the records of former
`Presidents. The Select Committee, however, ignored these
`restrictions by sending a “sweeping” records request
`to the National Archives and Records Administration
`seeking broad swaths of confidential records created
`during President Trump’s term of office.
`
`The Constitution, this Court’s precedent, and federal
`statutes invalidate the expansive request at issue here.
`Moreover, a former President has the right to assert
`executive privilege, even after his term of office. See Nixon
`v. Adm’r of Gen. Servs. GSA, 433 U.S. 425, 439 (1977)
`(“GSA”). This is so because executive privilege “safeguards
`the public interest in candid, confidential deliberations
`within the Executive Branch; it is ‘fundamental to the
`operation of Government.’” Mazars, 140 S. Ct. at 2032
`(quoting United States v. Nixon, 418 U.S. 683, 708 (1974)).
`
`
`
`3
`
`The congressional request is untethered from any valid
`legislative purpose and exceeds the authority of Congress
`under the Constitution and the Presidential Records Act.
`Despite clear precedent and the unambiguous dictates of
`statute, the D.C. Circuit upheld the Committee’s broad
`requests and refused to honor President Trump’s well
`established claims of executive privilege. For example, the
`Committee asked for “[a]ll documents and communications
`within the White House on January 6, 2021, relating
`in any way to,” among others, the President, the Vice
`President, over two dozen of the highest-ranking officials
`in the federal government (including the National Security
`Advisor and his Deputy, and the White House Counsel and
`his Deputy), any Member of Congress or congressional
`staff; or the Department of Defense, the Department
`of Justice, the Department of Homeland Security, the
`Department of the Interior, or any element of the National
`Guard. This sweeping request alone demands access to
`any number of records to which Congress is not–in any
`way–entitled. First, such records have nothing to do with
`the events of January 6th. Second, these records are
`protected by executive and other privileges. And third,
`and most importantly, these requests exceed the scope of
`the requesting committee’s authority because they lack
`any conceivable related legislative purpose.
`
`The records of a former President are not distributed
`freely upon the conclusion of his term of office, even
`to Congress. Except in extraordinary circumstances,
`records are protected from disclosure for a considerable
`amount of time after a President has left office. The
`following multistep analysis determines whether specific
`records are subject to production:
`
`
`
`4
`
`Step one: The general rule is access to confidential
`presidential records is restricted for a period not
`exceeding twelve years after a President leaves office.
`Upon Congress’ request to the National Archives and
`Records Administration, the former President is notified
`and provided an opportunity to object, either pursuant
`to the Presidential Records Act or the constitutional
`principles of separation of powers and executive privilege.
`A threshold determination is then made as to whether
`the records are restricted pursuant to the Presidential
`Records Act or protected by executive privilege. The
`positions of the current and former presidents are
`considered in making this determination.
`
`Step two: Next, the request must comply with limits
`Congress placed upon itself in the Presidential Records
`Act, 44 U.S.C. § 2205, which mirrors the constitutional
`separation of powers limitations on records requests. See
`Mazars, 140 S. Ct. at 2035-36. Specifically, Congress (or
`a congressional committee acting within its delineated
`jurisdiction) must demonstrate both a need for the
`record necessary for it to conduct its business and that
`the information in the records is not otherwise available.
`§ 2205(2)(C). These requirements inherently demand that
`the request be limited in scope. If Congress fails to meet
`this burden, then the request is ineffective and it must be
`rejected by the Archivist or the courts, irrespective of the
`position of the incumbent President.
`
`Step three: Should the Archivist determine that
`Congress met its burden under the PRA, the requests
`must still clear the constitutional restrictions of separation
`of powers and executive privilege. The separation of
`powers framework is defined by Mazars. Similarly,
`
`
`
`5
`
`whether Congress can invade the protections of a former
`president’s executive privilege is determined by the
`standards explained in Nixon and GSA. Indeed, courts
`will not allow such an invasion absent a demonstrated
`specific need for the information sought. Nixon, 418 U.S.
`at 713. On this question, the incumbent President may
`weigh in on whether a predecessor’s privilege should
`be protected; his determination is weighty but not
`determinative. Should Congress, the former President,
`and the incumbent President not unanimously agree on
`production, then a living former President can judicially
`challenge the production. A multitude of factors should
`be carefully considered before allowing such an invasion,
`including: the relative positions of both the incumbent and
`former Presidents regarding specific records, the relative
`need of Congress for the specific records at issue, whether
`the records will remain confidential, and the time that has
`passed since the conclusion of the former President’s term
`of office. This review should be conducted in camera to
`ensure that the records remain confidential during the
`dispute.
`
`Contrary to this analysis, the Committee and the
`Department of Justice contend, effectively supported
`by the D.C. Circuit, that a committee of Congress may
`request the most sensitive Oval Office communications
`of a President mere months after he leaves office, if the
`request is supported by the incumbent President. They
`further argue that Congress is permitted to investigate
`perceived wrongdoing, so long as it also promises at some
`point in the future to consider some amorphous remedial
`legislation. Their arguments, and the decisions of the
`courts below endorsing them, lack any limiting principle.
`Moreover, the decisions below effectively gut the ability
`
`
`
`6
`
`of former Presidents to maintain executive privilege over
`the objection of an incumbent, who is often (as is the case
`here) a political rival. These are profoundly serious issues
`the Court should resolve.
`
`The decision of the court below substantially expands
`congressional power. Such expansion is at odds with
`the Presidential Records Act and directly contrary to
`this Court’s precedent and the Constitution. The D.C.
`Circuit opinion transforms the nature of the interactions
`between the political branches, eroding a “[d]eeply
`embedded traditional way[] of conducting government.”
`Youngstown Sheet & Tube Co. v. Sawyer, 343 U.S. 579,
`610 (1952) (Frankfurter, J., concurring). The Constitution,
`this Court’s precedent, and the Presidential Records Act
`prevent two politically-aligned branches of government
`from wielding unfettered power to undermine the
`Presidency and our Republic. This Court should grant
`certiorari to ensure unlawful exercises of congressional
`power are checked by both reason and law.
`
`sTATEmENT
`
`I. background
`
`After the 2020 election, Democrats in Congress
`created the United States House Select Committee to
`Investigate the January 6th Attack on the United States
`Capitol pursuant to House Resolution (“H. Res.”) 503. H.
`Res. 503 purports to vest the Committee with unfettered
`power to investigate the activities of intelligence agencies,
`law enforcement agencies, and the Armed Forces
`surrounding January 6th; It also provides that the
`Committee will issue a final report on its activities. DDC
`Doc. 1.4 at 8. Pursuant to H. Res. 503, the Committee is
`
`
`
`7
`
`prohibited from holding the markup of any legislation. Id.
`at 9. Notably, this resolution never discusses the authority
`to investigate the Executive Office of the President. Id.
`at 1-14.
`
`On August 25, 2021, the Committee sent a self-
`described “sweeping” request for presidential records to
`the Archivist of the United States seeking information
`from the Executive Office of the President and the Office
`of the Vice President. DDC Doc. 1.2. These requests were
`signed by Committee Chairman Bennie G. Thompson.
`Id. The Committee’s request is startling in scope. For
`example, among myriad other documents requested, the
`Committee seeks:
`
`[a]ll documents and communications relating
`in any way to remarks made by Donald Trump
`or any other persons on January 6, including
`Donald Trump’s and other speakers’ public
`remarks at the rally on the morning of January
`6, and Donald Trump’s Twitter messages
`throughout the day.
`
`Id. at 2. Similarly, and even more invasive, the Committee
`requested, “[f]rom November 3, 2020, through January
`20, 2021, all documents and communications related to
`prepared public remarks and actual public remarks of
`Donald Trump.” Id. at 9.
`
`The Committee also requested “[a]ll documents and
`communications within the White House on January 6,
`2021, relating in any way to . . . the January 6, 2021, rally
`. . . [or] Donald J. Trump” and countless other individuals,
`including close personal advisors to the President. Id. at
`3-4 (emphasis added).
`
`
`
`8
`
`The Committee’s request purports to be made
`“pursuant to the Presidential Records Act (44 U.S.C.
`§ 2205(2)(C)).” See Id. at 1. The Presidential Records
`Act (“PRA”) of 1978, 44 U.S.C. §§ 2201–2209, governs
`the official records of Presidents and Vice Presidents.
`The Archivist and the National Archives and Records
`Administration (“NARA”) are charged with working with
`a former President to administer and store presidential
`records, among other duties, after the President leaves
`office. See generally 44 U.S.C. §§ 2202–2208.
`
`Under the PRA, the President is permitted to specify
`a period not to exceed twelve years after his term during
`which access to presidential records will be restricted. 44
`U.S.C. § 2204. Section 2205(2) provides three exceptions
`to the PRA’s access restrictions. 44 U.S.C. § 2205(2)(A)-
`(C). In pertinent part, this section states, “Presidential
`records shall be made available . . . (C) to either House
`of Congress, or, to the extent of matter within its
`jurisdiction, to any committee or subcommittee thereof
`if such records contain information that is needed for the
`conduct of its business and is not otherwise available.” 44
`U.S.C. § 2205(2)(C).
`
`The PRA gives the Archivist the power to promulgate
`regulations to administer the statute. 44 U.S.C. § 2206(2).
`Pursuant to those regulations, the Archivist must
`promptly notify the former and incumbent Presidents
`of a request for records created during that former
`President’s term of office. 36 C.F.R. § 1270.44(c) (2002).
`“The incumbent or former President must personally
`. . . assert a claim of constitutionally based privilege
`against disclosing a presidential record or a reasonably
`segregable portion” thereof. 36 C.F.R. § 1270.44(d). “If a
`
`
`
`9
`
`former President asserts privilege, the Archivist consults
`the incumbent President . . . to determine whether” he
`agrees. 36 C.F.R. § 1270.44(f)(1). If, as here, the incumbent
`President declines to uphold the claim of privilege, absent
`a court directing otherwise, the Archivist discloses the
`presidential record. 36 C.F.R. § 1270.44(f)(3).
`
`Finally, Executive Order No. 13489 requires the
`Archivist to notify both Presidents of his determination
`to release certain records at least thirty days prior to
`disclosure, unless a shorter time period is allowed under
`the NARA regulations. Exec. Order No. 13489, 74 Fed.
`Reg. 4669 (Jan. 21, 2009).
`
`Pursuant to this regulatory and statutory framework,
`the Archivist notified President Trump on August 30,
`2021, that he intended to produce certain documents in
`response to the Committee’s request. DDC Doc. 1.6 at
`1. On October 8, 2021, the Biden White House Counsel
`notified the Archivist that President Biden would not
`be asserting executive privilege over certain documents
`identified as responsive to the Committee’s request. DDC
`Doc. 1.5. That same day, President Trump notified the
`Archivist of his formal assertion of executive privilege
`with respect to a subset of documents and his protective
`assertion of executive privilege over any additional
`materials that may be requested by the Committee
`pursuant to the PRA, associated regulations, and the
`applicable executive order. DDC Doc. 1.6. Subsequently,
`President Trump made another assertion of executive
`privilege on October 21, 2021. DDC Doc. 21.1.1
`
`1. NARA’s review of responsive records continues on a rolling
`basis; on November 15, 2021, President Trump made another
`assertion of privilege.
`
`
`
`10
`
`The Biden White House Counsel notified the Archivist
`that President Biden would not assert executive privilege
`over the documents identified in President Trump’s
`October 8 letter. The Biden White House then instructed
`the Archivist to turn the records over to the Committee
`thirty days from the date President Trump was notified
`of President Biden’s decision, absent an intervening court
`order. DDC Doc. 1.7.
`
`On October 13, 2021, the Archivist notified President
`Trump that “[a]fter consultation with Counsel to the
`President and the Acting Assistant Attorney General for
`the Office of Legal Counsel, and as instructed by President
`Biden,” the Archivist “determined to disclose to the
`Select Committee” all responsive records that President
`Trump determined were subject to executive privilege on
`November 12, 2021, absent an intervening court order.
`DDC Doc. 21.1. Likewise, the Archivist notified President
`Trump that further documents would be released over
`his privilege objections on November 26, 2021, absent a
`court order. Id.
`
`II. Proceedings below
`
`President Trump filed his Complaint in the U.S.
`District Court for the District of Columbia on October
`18, 2021, and his Motion for a Preliminary Injunction on
`October 19, 2021. DDC Doc. 1; DDC Doc. 5. The district
`court’s basis for jurisdiction came from 28 U.S.C. § 1331.
`After briefing, the district court heard argument on
`November 4, 2021, and denied President Trump’s motion
`on November 9, 2021. App. B, at 78a-126a; Trump v.
`Thompson, Civil Action No. 21-CV-2769, 2021 WL 5218398
`(D.D.C. Nov. 9, 2021) (denying Plaintiff-Appellant Donald
`
`
`
`11
`
`J. Trump’s Motion for Preliminary Injunction). President
`Trump filed his Notice of Appeal that same day, DDC.
`Doc. 37, and shortly thereafter moved the district court
`for an injunction pending appeal or an administrative
`injunction. DDC Doc. 38. The district court subsequently
`denied President Trump’s Motion, DDC Doc. 43, but the
`U.S. Court of Appeals for the District of Columbia Circuit
`(hereinafter “D.C. Circuit”) granted an administrative
`injunction and expedited the appeal. CADC Doc. 1921975
`at 1.
`
`The D.C. Circuit heard argument on November 30,
`2021. Id. at 2. On December 9, 2021, the Circuit affirmed
`the district court’s order. See Trump v. Thompson, Civil
`Action No. 21-5254, 2021 WL 5832713 (D.C. Cir. Dec. 9,
`2021). However, the D.C. Circuit directed the Clerk to
`withhold issuance of the mandate pending disposition of
`Petitioner’s injunctive request filed contemporaneously
`with this Petition. Id. at *31 n.20; Judgment, App. A,
`1a-77a. The Circuit further directed that, should this
`Petition and a motion for an injunction be timely filed,
`then its administrative injunction would remain operative
`until this Court decided whether to grant injunctive relief.
`Otherwise, should no such filing be made by December 23,
`2021, the D.C. Circuit’s administrative injunction would
`expire. Id. Finally, the D.C. Circuit directed the Clerk to
`issue the mandate immediately after the dissolution of
`its administrative injunction. CADC Doc. 1926126 (citing
`Fed. R. App. P. 41(b); D.C. Cir. Rule 41(a)(1)).
`
`REAsONs FOR gRANTINg ThE PETITION
`
`This case presents “an important question of federal
`law that has not been, but should be, settled by this Court.”
`
`
`
`12
`
`Sup. Ct. Rule 10(c). At stake is the ability of Presidents—
`past, current, and future—to rely upon executive
`privilege, separation of powers, and the Presidential
`Records Act to protect confidential Presidential records
`of deliberations from premature production to political
`rivals. The Committee’s improper records request should
`have been rejected out-of-hand; the D.C. Circuit’s decision
`upholding it was wrong.
`
`I. The Committee’s request raises novel and important
`questions of law that the Court should resolve.
`
`A properly functioning Executive Branch requires
`confidentiality in deliberations. Indeed, the Court recently
`recognized, “[executive] privilege safeguards the public
`interest in candid, confidential deliberations within the
`Executive Branch; it is ‘fundamental to the operation
`of Government.’” Mazars, 140 S. Ct. at 2032 (quoting
`Nixon, 418 U.S. at 708). “[P]rotection of the presidential
`decision-making process requires a promise that, as a
`general matter, its confidentiality will not be invaded,
`even to the limited extent of a judicial weighing in every
`case of a claimed necessity for confidentiality against
`countervailing public interests of the moment.” Senate
`Select Comm. on Presidential Campaign Activities v.
`Nixon, 498 F.2d 725, 729–30 (D.C. Cir. 1974) (cleaned up).
`
`While the protections of executive privilege and
`restrictions on access to presidential records are
`qualified, it is critical that future Presidents and their
`advisers understand the contours and perimeters of that
`privilege—and its exceptions—after the conclusion of a
`presidential term. Otherwise, the deliberative process
`of advising Presidents will be chilled, as advisers will
`
`
`
`13
`
`doubtless understand the audience of their deliberations
`is not simply the President in whose administration they
`serve but also Congress and their political rivals. The
`frankness of their advice will necessarily be chilled—to
`the nation’s detriment. See, e.g., Tobi M. E. Young, Ethics
`After the Executive Branch: The Perspective of the Office
`of the Former President, 22 tex. Rev. l. & pol. 237, 243
`(2018) (“It is in our national interest for presidents to
`receive advice untainted by worries (or indeed hopes) that
`the confidentiality of that advice will soon be dissolved,
`but hasty release of former White House staffers’
`communication with the former president would naturally
`affect how current White House staffers interact with
`their boss.”).
`
`The Court’s guidance is necessary to decide this
`important issue of first impression. While the Court has
`recognized that executive privilege is qualified, it has not
`explained the standard necessary to invade the privilege,
`especially when it is a
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