Donald Trump would like the Supreme Court to turn its attention to The Washington Post. The former president on Wednesday seemed to believe that the outlet’s interview with Representative Bennie Thompson, the chairman of the January 6 House select committee, will help convince the high court to take up his case as he attempts to keep committee investigators from gaining access to a massive cache of information from his administration. On December 23, Thompson suggested to the Post that Trump’s delay in telling supporters to leave the U.S. Capitol could factor in to a criminal referral to the Justice Department. “That dereliction of duty causes us real concern,” he told the Post. “And one of those concerns is that whether or not it was intentional, and whether or not that lack of attention for that longer period of time would warrant a referral.” A criminal referral against a former president, the Post noted in the article, would be “historic,” and Thompson’s comment was significant, given that he had “not previously discussed the issue or what information will be key to making the decision.” But a former federal prosecutor interviewed in the article also raised the concern that a criminal referral “wouldn’t be telling Justice anything that it didn’t know,” and risked emboldening those who have accused the committee of conducting a politically motivated persecution.
That was along the lines of how Trump’s team appeared to read it. “The Washington Post has confirmed what was already apparent—the Committee is indeed seeking any excuse to refer a political rival for criminal charges, and they are using this investigation to do so,” Trump lawyer Jesse Binnall wrote in a supplemental brief.
In Binnall’s world, Thompson, in his interview with the Post, “admitted his goal of uncovering information that could result in a criminal referral” to the DOJ and in “speaking so freely about [his] true goals” bolstered Trump’s claim that the House panel is acting as “an inquisitorial tribunal seeking evidence of criminal activity.” That purpose is “outside of any of Congress’s legislative powers,” Binnall argued. “The Committee cannot make a mockery of Congress’s constitutional mandate that its requests and investigation be supported by a ‘valid legislative purpose,’” he added. As CNN notes, this is not the first time Trump has tried to wield similar public comments from committee members in court to thwart their pursuit of his records. (An appeals court judge dismissed the claim earlier this month, noting “the mere prospect that misconduct might be exposed does not make the Committee’s request prosecutorial.”)
The legal battle over Trump’s White House records has been ratcheting up steadily in recent weeks. Earlier this month, a panel on the U.S. Court of Appeals for the D.C. Circuit rejected Trump’s claims of executive privilege and said the records, which are held by the National Archives, could be released. President Joe Biden had agreed to the disclosure of the material, and the appeals court panel—upholding a lower court’s opinion—said that the sitting president’s assessment prevailed over the former president. Biden, declining to assert executive privilege as requested by Trump, set up “the first of its kind constitutional controversy,” per the Post. Last week, Trump asked the Supreme Court to hear his lawsuit and, while it considers whether to accept the case, block the records from being sent to the panel. This is all part of Trump’s incessant attempt to hinder the panel’s investigation, work already facing a ticking clock as the midterm elections loom. This week, the House committee agreed to delay or withdraw demands for hundreds of records from Trump’s administration, such as those that appear unrelated to the probe or are deemed sensitive, The New York Times reported Tuesday. Trump cast the deferral as a win, an assessment Representative Liz Cheney, vice chair of the January 6 committee, challenged on Twitter:
Whether the Supreme Court will take up Trump’s appeal remains to be seen. Trump’s lawyers weren’t the only ones writing to the high court on Wednesday. A group of former executive branch lawyers made up of “half a dozen former White House and top Justice Department lawyers who served under Republican presidents” filed an amicus brief urging the Supreme Court to reject the former president’s bid, The Hill reports. Part of the brief explicitly challenges Trump’s claim that the panel lacks a valid legislative reason for pursuing his administration’s records. The authors note this argument is particularly toothless given the unprecedented episode that prompted the panel’s creation: “It is difficult to imagine a more compelling interest than the House’s interest in determining what legislation might be necessary to respond to the most significant attack on the Capitol in 200 years and the effort to undermine our basic form of government that that attack represented.”
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