CREW, along with former White House attorneys Virginia Canter and Richard Painter, filed an amicus brief opposing Donald Trump’s attempt to use executive privilege to block critical information from the House Select Committee investigating the January 6 attack on the U.S. Capitol. The brief asks the D.C. Circuit Court of Appeals to affirm the lower court’s denial of Trump’s request to halt release of the records to Congress.
This is no ordinary executive privilege dispute. In deciding that the requested documents should be turned over to the January 6 Select Committee, President Biden cited the “unique and extraordinary circumstances” presented by former President Trump’s efforts to overturn the 2020 election and the ensuing attack on the Capitol by his supporters. President Biden found that asserting privilege would be against the public interest given Congress’s “need to understand the facts underlying the most serious attack on the operations of the Federal Government since the Civil War.” He also denounced former President Trump’s privilege claims as an attempt to cover up “a clear and apparent effort to subvert the Constitution itself.”
Under settled Supreme Court precedent, the sitting president has the power to assert constitutional privileges. Former presidents retain only a limited right to assert executive privilege. If, however, there is a disagreement over whether to assert privilege, the sitting president’s views are entitled to greater weight, especially when the dispute involves the president’s duties under Article II of the Constitution. In the unique and extraordinary circumstances of this case, President Biden’s constitutional judgement not to assert privilege outweighs the former president’s privilege claims.