Lawyers from the Justice Department — representing the Biden administration, including the National Archives, which holds the Trump-era records — said that the House has “sufficient reason” to try to learn what Trump and others knew before the violence. The filing came as Trump tries to overturn a lower-court decision and keep the records secret.
“Far from ‘fishing,’ or looking to the former President and his advisors as a ‘case study,’ the Select Committee is investigating known events involving the former President and other White House officials and relating to a singular attack on the Capitol,” the Justice Department lawyers wrote.
It’s unusual for Congress and the executive branch to be so aligned in a court case over presidential powers, and the Biden administration has taken up many of the same arguments the House is making about why it needs to investigate. Previously, the Biden administration said it would not assert executive privilege to protect Trump-era residential records because of the “unique and extraordinary” nature of the Capitol siege.
The argument in the legal brief is some of the strongest language yet from the Biden administration endorsing the House probe into Trump.
“The Select Committee thus has sufficient reason to probe, among other things: (1) what, if anything, the former President, his advisors, other government officials, and those close to him knew about the likelihood of the protest turning violent; (2) when they knew it; (3) whether they sought to encourage or prevent it and the actions they took in response; and (4) how, if at all, their actions facilitated, exacerbated or led to the violence that overtook the protest,” lawyers from the Biden administration wrote.
Also in a Monday court filing, lawyers for the House said they need to investigate the former President’s private papers as they seek to consider legislation aimed at protecting future elections. The House wants the records soon, and the lawyers argued against letting the court process drag out.
“Future elections are imminent and there could be future attacks on democracy rooted in conduct occurring well before the election,” the lawyers wrote. “The Select Committee’s task to study and suggest legislation to ensure that January 6 is not repeated, and that our Nation’s democracy is protected from future attacks, is urgent.”
To counter Trump’s claims that his public statements are already available, and so records of White House discussions aren’t needed, the House invoked Shakespeare.
“Any inquiry that did not insist on examining Mr. Trump’s documents and communications would be worse than useless—the equivalent of staging a production of Hamlet without the Prince of Denmark,” their filing said.
Both the Biden administration and the House filed their arguments to the DC Circuit Court of Appeals on Monday, and are unified in believing the Trump White House records related to January 6 should be released to the House. Trump sued to keep the records secret, saying he should have a say in executive privilege claims as an ex-president, and lost at the trial-level court.
A three-judge panel at the federal appeals court is set to hear arguments on November 30. The National Archives is temporarily paused from turning over the disputed documents, such as call logs and notes from Trump’s chief of staff and press secretary, as the appeals court considers the matter.
The case tests major questions about executive privilege, congressional inquiries and the power of a former President.