Respondents Brief — Donald J. Trump, former 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.

Supreme Court briefDec 30, 2021

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No. 21-932

IN THE

Supreme Court of the United States

DONALD J. TRUMP,

Petitioner,

BENNIE G. THOMPSON, ET AL.,

Respondents.

On Petition for a Writ of Certiorari

to the United States Court of Appeals

for the District of Columbia Circuit

BRIEF IN OPPOSITION

Annie L. Owens

Mary B. McCord

Joseph W. Mead

INSTITUTE FOR

CONSTITUTIONAL ADVOCACY

AND PROTECTION

GEORGETOWN UNIVERSITY

LAW CENTER

600 New Jersey Ave. NW

Washington, D.C. 20001

(202) 662-9042

ao700@georgetown.edu

Douglas N. Letter

Counsel of Record

Todd B. Tatelman

Eric R. Columbus

Stacie M. Fahsel

OFFICE OF GENERAL COUNSEL

U.S. HOUSE OF

REPRESENTATIVES

5140 O’Neill House Building

Washington, D.C. 20515

(202) 225-9700

douglas.letter@mail.house.gov

Counsel for Bennie G. Thompson and the House of

Representatives Select Committee to Investigate the

January 6th Attack on the United States Capitol

QUESTION PRESENTED

Whether the court of appeals correctly affirmed

the denial of Petitioner’s motion for a preliminary injunction that would bar the United States Archivist

from granting access to a specific set of Presidential

records to a Select Committee of the House of Representatives investigating the facts and circumstances

surrounding the January 6 attack on the Capitol.

TABLE OF CONTENTS

Page

QUESTION PRESENTED ........................................... i

STATEMENT............................................................... 1

A. Background ..................................................... 2

B. Facts And Procedural History ....................... 4

REASONS FOR DENYING THE PETITION .......... 15

This Court’s Review Is Not Warranted .............. 16

II. The Decision Below Is Correct ............................ 20

A. Executive Privilege Does Not Bar

Release Of The Records ............................ 20

B. The Request Serves A Valid Legislative

Purpose ...................................................... 24

C. The Request Satisfies All Of Petitioner’s

Proposed Separation-Of-Powers Tests ..... 30

D. The Court Of Appeals Correctly Held

That The Equitable Factors Weigh

Against Petitioner ..................................... 34

III. At A Minimum, This Court Should Hear The

Case On An Expedited Basis .............................. 36

CONCLUSION .......................................................... 37

iii

TABLE OF AUTHORITIES

Page(s)

Cases

Barenblatt v. United States, 360 U.S. 109 (1959) ..... 27

Benisek v. Lamone, 138 S. Ct. 1942 (2018) ............... 34

Donald J. Trump for President, Inc. v. Sec’y of

Pennsylvania,

830 F. App’x 377 (3d Cir. 2020) ............................... 5

Eastland v. U.S. Servicemen’s Fund,

421 U.S. 491 (1975) ................................................ 27

Free Enter. Fund v. Pub. Co. Acct. Oversight Bd.,

561 U.S. 477 (2010) ................................................ 35

Hutcheson v. United States, 369 U.S. 599 (1962) ..... 26

McGrain v. Daugherty, 273 U.S. 135 (1927) ....... 25, 26

Nixon v. Administrator of General Services,

433 U.S. 425 (1977) ........................................ passim

Pennsylvania Dep’t of Corrs. v. Yeskey,

524 U.S. 206 (1998) ................................................ 19

Rubin v. United States, 524 U.S. 1301 (1998) .......... 35

Seila Law LLC v. CFPB, 140 S. Ct. 2183 (2020) ...... 21

Sinclair v. United States, 279 U.S. 263 (1929) ......... 26

Tenn. Valley Auth. v. Hill, 437 U.S. 153 (1978) ....... 36

Trump v. Mazars USA, LLP,

140 S. Ct. 2019 (2020) .................................... passim

United States v. Burr,

25 F. Cas. 30 (No. 14,692d) (C.C.D. Va. 1807) ...... 34

United States v. Nixon,

418 U.S. 683 (1974) .............................. 17, 24, 31, 33

Watkins v. United States,

354 U.S. 178 (1957) ................................................ 27

Wilkinson v. United States,

365 U.S. 399 (1961) ................................................ 27

Statutes

Presidential Records Act of 1978,

44 U.S.C. §§ 2201-2209 .................................. passim

44 U.S.C. § 2201 ............................................... 28, 31

44 U.S.C. § 2202 ........................................... 3, 28, 31

44 U.S.C. § 2203 ....................................................... 3

44 U.S.C. § 2204 ....................................................... 3

44 U.S.C. § 2205 ........................................... 3, 27, 28

44 U.S.C. § 2208 ....................................................... 3

Constitutional Provisions

U.S. Const., Art. II, § 1 .............................................. 22

U.S. Const., Art. II, § 2 .............................................. 22

Legislative Materials

167 Cong. Rec. E1151 (Oct. 27, 2021) ....................... 26

H. Res. 503, 117th Cong. (2021) .............................. 7, 8

Hr’gs. on S. 2170 before the Subcomm. on

Intergovernmental Relations of the S. Comm.

on Gov’t Ops., 94th Cong., 1st Sess. (1975) ........... 18

Administrative and Executive Materials

36 C.F.R. § 1270.44 .................................................. 3, 4

Exec. Order No. 13489,

74 Fed. Reg. 4669 (Jan. 21, 2009)............................ 4

Other Authorities

Michael A. Fitts, The Legalization of the

Presidency: A Twenty-Five Year Watergate

Retrospective, 43 St. Louis U. L.J. 725 (1999)....... 26

Letter from Jonathan Su, Deputy Counsel to the

President, to Kristin Amerling, Deputy Staff

Dir. and Chief Counsel for the Select

Committee (Dec. 16, 2021),

https://perma.cc/FR5G-XEP2 ................................. 11

Press Briefing, Remarks by President Trump

(Sept. 23, 2020),

https://perma.cc/M6AA-9PW7 ................................ 4

Press Briefing, Remarks by President Trump,

Vice President Pence, and Members of the

Coronavirus Task Force (Apr. 7, 2020),

https://perma.cc/SU9J-FJZV ................................... 4

James Sample, The Last Rites of Public

Campaign Financing?, 92 Neb. L. Rev. 349

(2013) ...................................................................... 26

The Federalist No. 37 (James Madison)

(C. Rossiter ed., 1961) ............................................ 34

The Federalist No. 69 (Alexander Hamilton)

(C. Rossiter ed., 1961) ............................................ 34

Donald Trump, President Trump Speaks at 2020

Republican National Convention Vote, CSPAN (Aug. 24, 2020), https://perma.cc/9ELXE9TF ......................................................................... 4

Donald Trump, Rally on Electoral College Vote

Certification, C-SPAN (Jan. 6, 2021),

https://perma.cc/7XKB-3EV2 .................................. 6

Donald Trump (@realDonaldTrump), Twitter

(Dec. 19, 2020, 1:42AM) .......................................... 5

STATEMENT

Based on a straightforward application of this

Court’s precedents, the court of appeals rejected a

challenge by Petitioner, former President Donald J.

Trump, to a request for certain Presidential records

from the House of Representatives Select Committee

to Investigate the January 6th Attack on the United

States Capitol. The Select Committee is charged with

investigating an unprecedented attack on Congress itself and a disruption of the peaceful transfer of Presidential power. This investigation will lead to specific

legislative recommendations designed to prevent any

future attacks on the democratic institutions of our

Republic.

Although the facts are unprecedented, this case is

not a difficult one. Petitioner attempts to overturn the

current President’s reasonable determination that the

Select Committee is entitled to three tranches of Presidential records responsive to its request. The court of

appeals correctly applied this Court’s precedents to reject Petitioner’s challenge under every heightened

standard he claimed should apply, relying in part on

the fact that Petitioner did not make any particularized objections to production of the specific Presidential records before the court. To the extent any novel

questions linger in the background, this case would be

a poor vehicle to address them.

This Court’s review is unwarranted, and the petition for a writ of certiorari should be denied. Respondents the Select Committee and Chairman Bennie

Thompson (collectively, the Congressional Respondents) respectfully reaffirm their request for expedited

consideration of the petition for a writ of certiorari,

given the urgency of the investigation and consistent

with the expedited consideration afforded by the lower

courts.

A. Background

In Nixon v. Administrator of General Services

(“GSA”), 433 U.S. 425 (1977), this Court rejected former President Nixon’s challenge to the constitutionality of a statute transferring custody of his Presidential

records to the National Archives and prohibiting the

destruction of those materials. As relevant here, the

Court determined that a former President may be

“heard to assert” claims of the Presidential communications privilege over records created during his administration, but made clear that, as with a sitting

President, the privilege is qualified and can be overcome by a showing of need. Id. at 439, 449.

The Court recognized the “substantial public interest[]” in “facilitating a full airing of the events leading to [Nixon’s] resignation, and Congress’ need to understand how those political processes had in fact operated in order to gauge the necessity for remedial legislation.” 433 U.S. at 453. Those “important objectives” overcame the former President’s privilege assertion, which was based on a generalized interest in Executive Branch confidentiality and not supported by

the incumbent President. Id. at 454. In balancing

these interests, the Court emphasized that the incumbent President is “in the best position to assess the

present and future needs of the Executive Branch, and

to support invocation of the privilege accordingly.” Id.

at 449.

Congress subsequently enacted the Presidential

Records Act, 44 U.S.C. §§ 2201-09, establishing a comprehensive framework for preservation and disclosure

of Presidential records. Section 2202 makes clear that

the United States—not the President—owns all Presidential records, even after a President leaves office.

At that time, the Archivist of the United States “assume[s] responsibility for the custody, control, and

preservation of, and access to, the Presidential records

of that President.” Id. § 2203(g)(1).

Section 2205(2)(C) makes Presidential records

“available … 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 that is not otherwise available.”

Section

2204(c)(2) provides that the Act does not “confirm,

limit, or expand any constitutionally-based privilege

which may be available to an incumbent or former

President.”

Implementing regulations establish procedures

for incumbent and former Presidents to assert claims

of executive privilege over Presidential records in response to a Congressional request. See 36 C.F.R.

§ 1270.44(d).1 When Congress requests such records,

“either President may assert a claim of constitutionally based privilege against disclosing the record.” Id.

Should the incumbent President assert such a claim,

the Archivist will not disclose the records unless a

court orders disclosure. Id. § 1270.44(e).

If, however, a former President raises a privilege

claim, different rules apply: “the Archivist consults

1 One provision of the Act (Section 2208) addresses claims of

privilege by former and incumbent Presidents, but that provision

does not apply to Congressional requests. 44 U.S.C. § 2205. The

terms of 36 C.F.R. § 1270.44(d) largely mirror Section 2208.

with the incumbent President … to determine whether

[he] will uphold the claim.” 36 C.F.R § 1270.44(f)(1).

If the incumbent President upholds the privilege

claim, the Archivist will not disclose the records unless

a court orders disclosure. Id. § 1270.44(f)(2). If “the

incumbent President does not uphold the claim asserted by the former President,” or “fails to decide”

within a set time, the Archivist will release the records

unless otherwise ordered by a court.

Id.

§ 1270.44(f)(3); see Exec. Order No. 13489, 74 Fed.

Reg. 4669 (Jan. 21, 2009) (imposing a similar structure

for resolving executive privilege claims).

B. Facts And Procedural History

1. In April 2020, Petitioner began to make public

statements about the potential for widespread election

fraud. On April 7, he described mail-in ballots as “corrupt,” “fraudulent in many cases,” and the work of

“cheaters.”2 In his nomination acceptance speech, Petitioner stated that “[t]he only way they can take this

election away from us is if this is a rigged election.”3

Asked whether he would “commit to making sure that

there is a peaceful transferal [sic] of power,” he said,

“we’re going to have to see what happens.” 4

2 Press Briefing, Remarks by President Trump, Vice Presi-

dent Pence, and Members of the Coronavirus Task Force (Apr. 7,

2020), https://perma.cc/SU9J-FJZV.

3 Donald Trump, President Trump Speaks at 2020 Republi-

can National Convention Vote at 22:08-22:18, C-SPAN (Aug. 24,

2020), https://perma.cc/LE4R-RJC5.

4 Press Briefing, Remarks

by President Trump (Sept. 23,

2020), https://perma.cc/M6AA-9PW7.

On November 3, 2020, Joseph Biden was elected

President. Pet. App. 5a. Petitioner nonetheless refused to concede, claiming that the election was

“rigged” and alleging “tremendous voter fraud and irregularities.” Id. In the following weeks, Petitioner

and his allies filed numerous lawsuits challenging the

election results. Id. at 6a. No court upheld Petitioner’s claims of voter fraud. Id. As one court put it:

“[C]alling an election unfair does not make it so.

Charges require specific allegations and then proof.

We have neither here.” Donald J. Trump for President, Inc. v. Sec’y of Pennsylvania, 830 F. App’x 377,

381 (3d Cir. 2020). This Court denied relief in numerous cases aimed at overturning the election results.

See, e.g., Trump v. Biden, No. 20-882; Donald J.

Trump for President, Inc. v. Degraffenreid, No. 20-845;

Trump v. Wisconsin Elections Comm’n, No. 20-883;

Gohmert v. Pence, No. 20A115; Wood v. Raffensperger,

No. 20-799; In re Pearson, No. 20-816; King v.

Whitmer, No. 20-815; Kelly v. Pennsylvania, No.

20A98; Texas v. Pennsylvania, No. 22O155.

In December 2020, Petitioner began encouraging

his supporters to gather in Washington on January 6,

2021, the date Congress would convene in a Joint Session to count the electoral votes, as required by the

Constitution. “Statistically impossible to have lost the

2020 Election,” he tweeted. “Big protest in D.C. on

January 6th. Be there, will be wild!”5 See Pet. App.

6a.

2. Just before noon on January 6, Petitioner took

the stage at a rally near the White House. Pet. App.

Donald Trump (@realDonaldTrump), Twitter (Dec. 19,

2020, 1:42AM).

6a. He spoke for over an hour, reiterating his claim

that the election was “stolen” and “rigged.” 6 He urged

then-Vice President Pence, who was to preside over

the electoral count, to “do the right thing” by rejecting

States’ electoral votes and refusing to finalize the election.7 And he told the crowd that “you’ll never take

back our country with weakness.” 8

Toward the end of his speech, Petitioner declared,

“We fight like Hell and if you don’t fight like Hell,

you’re not going to have a country anymore.”9 He then

encouraged his supporters to march to the Capitol,

where the Joint Session was about to begin: “[W]e’re

going to walk down Pennsylvania Avenue … to the

Capitol and … we’re going to try and give our Republicans … the kind of pride and boldness that they need

to take back our country.”10

Shortly after the speech, a large crowd of Petitioner’s supporters marched to the Capitol and overwhelmed law enforcement officers guarding the building. The rioters scaled walls, smashed through barricades, and shattered windows, eventually streaming

into the building. They attacked police officers with

chemical agents, flag poles, and frozen water bottles—

6 Pet. App. 6a (quoting Donald Trump, Rally on Electoral

College Vote Certification at 3:33:05–3:33:10, 3:33:32–3:33:54, CSPAN (Jan. 6, 2021), https://perma.cc/7XKB-3EV2 (“Rally

Speech”)).

7 Id. at 6a-7a (quoting Rally Speech, at 3:37:19–3:37:29).

8 Id. at 7a (quoting Rally Speech, at 3:47:20–3:47:42).

9 Id. (quoting Rally Speech, at 4:41:17–4:41:33).

10 Id. (quoting Rally Speech, at 4:42:00-4:42:32).

in some instances crushing officers between doors.

Pet. App. 7a.

The Joint Session of Congress was disrupted.

Lawmakers in the House and Senate Chambers, as

well as Vice President Pence, were forced to evacuate.

Soon after, the Senate Chamber was overrun by rioters. The crowd searched for Vice President Pence and

House Speaker Nancy Pelosi. Members of the mob

built a makeshift gallows on the Capitol lawn, and rioters called for the Vice President’s execution. Pet.

App. 8a.

The attack marked the most significant assault on

the Capitol since the War of 1812. For hours, law enforcement was unable to regain control of the building.

Several people died, and 140 law enforcement officers

were injured. Portions of the Capitol’s historic architecture were damaged or destroyed. Pet. App. 8a-9a.

In the evening, the Joint Session of Congress was

able to reconvene, and at 3:42am Congress completed

its constitutional responsibility to count the electoral

votes. See Pet. App. 8a.

On January 20, Petitioner departed the White

House and President Biden assumed the Presidency.

3. In response to this assault on the Capitol, the

House of Representatives adopted House Resolution

503, which established the Select Committee. H. Res.

503, 117th Cong. (2021). The resolution authorizes the

Select Committee to (1) “investigate the facts, circumstances, and causes” of the January 6 attack as well as

the “influencing factors that contributed to” it; (2)

“identify, review, and evaluate the causes of and the

lessons learned from” the attack; and (3) “issue a final

report to the House” containing “findings, conclusions,

and recommendations for corrective measures.” Id.

§ 4(a).

Such corrective measures may include “changes in

law, policy, procedures, rules, or regulations” designed

to prevent future acts of violence “including acts targeted at American democratic institutions”; “improve

the security posture of the United States Capitol Complex”; and “strengthen the security and resilience of

the United States and American democratic institutions.” H. Res. 503 § 4(c). In addition, the resolution

authorizes the Select Committee to publish interim reports, including “legislative recommendations.” Id.

§ 4(b)(1).

On August 25, the Select Committee issued a document request to the National Archives under the

Presidential Records Act, seeking certain records from

the Executive Office of the President and the Office of

the Vice President. Pet. App. 11a. Specifically, the

Select Committee requested documents, written communications, calendar entries, videos, photographs, or

other media relating to Petitioner’s January 6 speech,

the rally and march, the violence at the Capitol, and

the White House response. Id. For specified periods,

the Select Committee requested records relating to

planning by the White House and others regarding the

electoral count, preparations leading up to January 6,

and information Petitioner received about the election

outcome and the election system. Id. Further, for a

specified period surrounding the 2020 election, the Select Committee sought documents and communications of Petitioner and certain advisers relating to the

transfer of power and obligation to follow the rule of

law, including with respect to changes in personnel at

certain Executive Branch agencies. Id. “Given the urgent nature of the request,” the Select Committee

asked the Archivist to “expedite its consultation and

processing times pursuant to … 36 C.F.R.

§ 1270.44(g).” Id. (cleaned up).

On August 30, the Archivist notified Petitioner

that he had identified a first tranche of 136 pages of

responsive records. Pet. App. 12a. Following notification to President Biden, the Archivist withdrew seven

pages as non-responsive. Id. On October 8, White

House Counsel Dana Remus wrote to the Archivist

that “President Biden has determined that an assertion of executive privilege is not in the best interests

of the United States, and therefore is not justified as

to any of the Documents” in that tranche. C.A. App.

107. The letter explained that “Congress has a compelling need in service of its legislative functions to understand the circumstances that led to these horrific

events,” and “[t]he Documents shed light on events

within the White House on and about January 6 and

bear on the Select Committee’s need to understand the

facts underlying the most serious attack on the operations of the Federal Government since the Civil War.”

Pet. App. 88a.

Petitioner immediately responded, asserting executive privilege over 46 pages of documents. Pet. App.

12a. His letter stated that the enumerated “records

contain information subject to executive privilege, including the presidential communications and deliberative process privileges.” C.A. App. 110. Petitioner

did not explain why any specific documents were privileged or why withholding them would serve the public

interest.

The documents in the first tranche over which Petitioner asserted privilege consist of daily Presidential

diaries, schedules, visitor logs, activity logs, call logs,

specifically for or including January 6; drafts of

speeches, remarks, and correspondence concerning

the events of that day; and handwritten notes from the

files of the Chief of Staff concerning the events of that

day. Pet. App. 12a.

White House Counsel Remus responded that

“President Biden has considered the former President’s assertion,” but, for the same reasons previously

given, “does not uphold the former President’s assertion of privilege.” C.A. App. 113. Accordingly, given

“the urgency of the Select Committee’s need for the information,” the President instructed the Archivist to

provide the Select Committee the pages in question 30

days after notifying Petitioner. Pet. App. 16a.

In September, the Archivist notified Petitioner

and the President of two additional tranches of responsive documents. Petitioner again claimed generalized

privilege over certain documents, and the President

again advised that he was not upholding the privilege

assertions. The contested documents in the these

tranches consist of Press Secretary talking points and

related documents regarding allegations of voter

fraud, election security, and other 2020 election topics;

Presidential activity calendars and a related handwritten note for January 6 and for January 2021 generally; draft text of a speech for the January 6 rally; a

handwritten note from the Chief of Staff’s files regarding various election issues, including the January 6

electoral count; a draft executive order regarding election integrity; a draft proclamation honoring the U.S.

Capitol Police and two officers who died in the wake of

the attack, and related emails; and various records

from a Deputy White House Counsel regarding election-related issues. The President instructed the Archivist to provide the contested pages to the Select

Committee, and noted that in the course of accommodation the Select Committee had deferred its request

for 50 pages of responsive records. Pet. App. 14a-16a.

The accommodation process is ongoing. The Select Committee has agreed to defer its request as to

additional documents, and has agreed that it does not

need documents that “appear to have no content that

might be material to the Select Committee’s investigation.”11

4. On October 18, Petitioner filed this action

against Respondents the Select Committee, Chairman

Thompson, the Archivist, and the National Archives

and Records Administration. Proceeding in his “official capacity as a former President,” he sought, inter

alia, a declaratory judgment that the Select Committee’s requests are invalid and unenforceable, an injunction against the Congressional Respondents’ enforcement of the requests or use of any information

thus obtained, and an injunction against the production of the requested information. C.A. App. 30-31.

Petitioner moved for a preliminary injunction prohibiting Respondents “from enforcing or complying with”

the Select Committee’s request. D. Ct. Dkt. No. 5, at

11 Letter from Jonathan Su, Deputy Counsel to the Presi-

dent, to Kristin Amerling, Deputy Staff Dir. and Chief Counsel

for the Select Committee (Dec. 16, 2021), https://perma.cc/FR5GXEP2.

The district court denied the requested injunction.

Pet. App. 78a-126a. The court concluded that Petitioner’s assertion of executive privilege was “outweighed by President Biden’s decision not to uphold

the privilege,” and rejected Petitioner’s invitation to

“second guess that decision by undertaking a document-by-document review.” Id. at 102a. The court

further determined that the Select Committee acted

within its authority, rejecting Petitioner’s argument

that the breadth of the request exceeded the Select

Committee’s need. Id. at 113a, 116a. The court likewise rejected Petitioner’s argument that the Select

Committee’s request failed to satisfy the test announced by this Court in Trump v. Mazars USA, LLP,

140 S. Ct. 2019 (2020). Id. at 121a-122a.

The district court additionally concluded that Petitioner could not demonstrate irreparable harm, and

that the balance of the equities and the public interest

favored Respondents. Pet. App. 122a-125a. The court

denied Petitioner’s request for an injunction pending

appeal.

5. Petitioner appealed. The court of appeals

granted an administrative injunction and set the case

for highly expedited briefing and argument. Pet. App.

19a.

The court of appeals affirmed. Pet. App. 1a-77a.

The court first explained that Petitioner’s appeal was

limited to the question whether his assertion of executive privilege as to only “a subset of documents in the

Archivist’s first three tranches” requires that those

documents be withheld from the Select Committee.

Id. at 20a. As to those documents, the court held that

Petitioner had provided no basis to upset the accommodation reached between the Legislative and Executive Branches. Id. at 4a, 20a.

Applying this Court’s decision in GSA, the court of

appeals recognized that Petitioner, as a former President, could be “heard to assert” a claim of executive

privilege. Pet. App. 38a. But the privilege is a “qualified one” that—even when asserted by a sitting President—can be “overcome by a sufficient showing of

need.” Id. at 39a. The court noted that it “need not

conclusively resolve whether and to what extent a

court could second guess the sitting President’s judgment that it is not in the interests of the United States

to invoke privilege.” Id. at 40a. The court held that

“[u]nder any of the tests” Petitioner advocated, “the

profound interests in disclosure” of the records at issue

“far exceed” Petitioner’s “generalized concerns for Executive Branch confidentiality.” Id.

In so holding, the court of appeals relied on the

settled standard governing executive privilege claims:

“whether a sufficient showing of need for disclosure

has been made so that the claim of presidential privilege ‘must yield.’” Pet. App. 39a (quoting GSA, 433

U.S. at 454). The court outlined the “formidable alignment of factors” supporting the disclosure of the documents at issue. Id. at 40a. First, the court explained

that President Biden’s “careful and cabined assessment … carries immense weight”—not only because

“[u]nder our Constitution, we have one President at a

time,” but also because the President “has identified

weighty reasons for declining to assert privilege here.”

Id. at 41a, 43a. Second, the court emphasized that

Congress has a “uniquely weighty interest in investigating the causes and circumstances of the January

6th attack” and that it established “a sound factual

predicate for requesting these presidential documents

specifically.” Id. at 46a, 47a. Third, the court stressed

that “blocking disclosure would derail an ongoing process of accommodation and negotiation between the

President and Congress, and instigate an interbranch

dispute.” Id. at 49a-50a. Accordingly, the court concluded that the “accumulation of forces favoring disclosure is at least equal to, if not greater than, what

has supported the disclosure of the privileged materials of even a sitting President.” Id. at 51a.

Turning to Petitioner’s side of the ledger, the court

explained that he “has not identified any specific countervailing need for confidentiality tied to the documents at issue, beyond their being presidential communications.” Pet. App. 52a. The court further determined that Petitioner’s request for in camera review

of the documents at issue was baseless given his inability to “articulat[e] some compelling explanation for

nondisclosure.” Id. at 57a.

Next, the court of appeals held that the Select

Committee had established a legitimate legislative

purpose for its request. The court expressed “significant doubt” that the tests for legislative need proposed

by Petitioner applied in the context of a challenge by a

former President where there was no interbranch dispute. Pet. App. 58a. In any event, the court concluded

that the legislative interest at stake satisfied any of

the tests pressed by Petitioner—including Mazars and

the standard applicable to a privilege assertion by a

sitting President. Id. at 58a-59a.

The court of appeals then rejected Petitioner’s argument that the Presidential Records Act is unconsti-

tutional to the extent it is “construed to give the incumbent President ‘unfettered discretion to waive former Presidents’ executive privilege.’” Pet. App. 68a

(quoting Pet. C.A. Br. 47). The court reasoned that the

Act “gives the incumbent President no more power

than the Constitution already does,” and the Constitution does not give the incumbent “unfettered discretion.” Id. at 69a. As the court explained, Petitioner

simply “fail[ed] to make any relevant showing of a supervening interest in confidentiality” capable of overcoming “President Biden’s considered and weighty

judgment that Congress’s imperative need warrants

the disclosure of these documents.” Id.

Finally, the court determined that Petitioner did

not satisfy any of the remaining preliminary injunction factors. Because “the only relevant injury would

be one to the present and future interests of the Executive Branch itself,” Petitioner did not establish that

disclosure would yield irreparable harm considering

President Biden’s determination that disclosure advances the national interest. Pet. App. 71a-72a. The

court also concluded that “the public interest and the

balance of hardships decidedly disfavor issuance of a

preliminary injunction.” Id. at 74a.

REASONS FOR DENYING THE PETITION

Having engaged in an accommodation process, the

Legislative and Executive Branches each have determined that the documents at issue should be released.

The courts below agreed, issuing opinions that faithfully apply this Court’s precedents and do not conflict

with the opinions of this Court or any other court. And

because the court of appeals evaluated the request under multiple standards—including ones applicable to

a sitting President—this case is an inappropriate vehicle for review.

The “rare and formidable alignment of factors” in

this case, Pet. App. 40a, counsels strongly against this

Court’s involvement. Such involvement would needlessly disrupt the delicate balance struck between the

branches, delay a co-equal branch’s urgent investigation into an unprecedented assault on Congress itself,

and require this Court to wade into factual determinations that do not warrant its review and that are eminently correct in any event.

This Court’s Review Is Not Warranted

The court of appeals’ conclusion that the Select

Committee is entitled to the Presidential records at issue in this case does not warrant this Court’s review.

A. The decision below does not conflict with a decision of this Court or any other court of appeals. Rather, the court of appeals’ conclusion rests on a

straightforward application of this Court’s precedents.

Pet. App. 38a-51a, 54a-55a. In particular, in GSA, the

Court reaffirmed that executive privilege can be overcome by a sufficient showing of legislative need, and

held that the incumbent President’s lack of support for

the former President’s privilege claim “detracts from

the weight of” that claim. GSA, 433 U.S. at 449. The

court of appeals’ fact-bound weighing of interests under this Court’s settled precedent does not warrant the

Court’s attention.

Petitioner nonetheless claims (Pet. 12-14) that

this case presents important and novel questions

about when a former President’s executive privilege

claim can overcome the incumbent’s contrary determi-

nation, and what standard should apply when a former President challenges Congress’s legislative purpose. But this case would be a poor vehicle for addressing those questions. As the court of appeals concluded,

the “accumulation of forces favoring disclosure is at

least equal to, if not greater than, what has supported

the disclosure of the privileged materials of even a sitting President.” Pet. App. 51a (emphasis added).

Likewise, the court of appeals and the district court

analyzed Congress’s purpose under the heightened

standard in Mazars, and the even more demanding

test applicable to executive privilege claims by a sitting President, see United States v. Nixon, 418 U.S.

683 (1974). Pet. App. 58a. Both courts held that, on

this record, the Select Committee satisfied those

standards too. Pet. App. 5a n.2, 57a-67a. Accordingly,

a decision about which test applies would make no difference to the outcome of this case.

Petitioner’s real complaint is that he disagrees

with how the court of appeals applied this Court’s

precedents. But that claim is insufficient to create any

question worthy of this Court’s review.

B. The fact that the Legislative and Executive

Branches have agreed to the production of the documents at issue and are engaged in an ongoing accommodation process further counsels against judicial intervention. Pet. App. 49a-50a. Congressional requests directed to the Executive Branch are frequently

resolved “without the involvement of this Court”

through the interbranch accommodation process,

which rests on a “tradition of negotiation and compromise.” Mazars, 140 S. Ct. at 2031. Throughout history, “congressional demands for presidential documents” most often have been “hashed out in the ‘hurly-

burly, the give-and-take of the political process between the legislative and the executive.’” Id. at 2029

(quoting Hr’gs. on S. 2170 before the Subcomm. on Intergovernmental Relations of the S. Comm. on Gov’t

Ops., 94th Cong., 1st Sess., 87 (1975) (A. Scalia, Assistant Attorney General, Office of Legal Counsel)). Accordingly, this Court has only warily interceded “in

cases concerning the allocation of power between the

two elected branches of Government,” doing so only

where such cases present an intractable “clash between rival branches.” Mazars, 140 S. Ct. at 2031,

2034 (cleaned up).

This case presents no such clash. The Select Committee requires the requested records to investigate

the events leading up to and on January 6 and to recommend remedial legislation and other measures to

prevent a similar attack in the future. See pp. 21-23,

24-29, infra. President Biden agrees that the Select

Committee “has a compelling need” for the documents

“in service of its legislative functions.” C.A. App. 107;

see Mazars, 140 S. Ct. at 2034 (“The President is the

only person who alone composes a branch of government.”). Through a process of negotiation and accommodation, the Select Committee and the Executive

Branch have agreed on which documents in the first

three tranches should be released immediately.

Contrary to Petitioner’s suggestion, this arrangement is not the result of politically motivated capitulation by the Executive Branch; instead, it is the product of compromise between the branches. The Executive Branch has determined not to assert executive

privilege over the records at issue in this case, and the

Select Committee has agreed to defer its requests for

certain pages of responsive documents that the Executive Branch tentatively believes should be withheld

or do not contain information material to the investigation. See Pet. App. 50a; pp. 9-11, supra. This giveand-take process is ongoing as to additional tranches

of documents that the Archivist continues to process

on a rolling basis. Pet. App. 49a-51a. This Court

therefore should decline to “needlessly disturb the

compromises and working arrangements” that the

Legislative and Executive Branches “themselves have

reached,” Mazars, 140 S. Ct. at 2031 (cleaned up), and

refuse Petitioner’s invitation “to start an interbranch

conflict that the President and Congress have

averted,” Pet. App. 40a.

C. Further, this case involves a discrete set of documents over which Petitioner failed to make specific

and particularized arguments in the courts below.

Pet. App. 52a. This case is therefore an especially poor

vehicle for this Court to address any weighty constitutional issues that may surface in future disputes. And,

to the extent Petitioner raises a facial challenge to the

validity of the Select Committee’s entire request, that

argument has been waived. As the court of appeals

noted, at oral argument Petitioner disclaimed any

such freestanding challenge, stating that all his arguments pertained to the documents over which Petitioner had claimed executive privilege. Pet. App. 70a

n.17; see C.A. Oral Arg. 13:25-13:51 (stating that Petitioner is only requesting an injunction as to “the subset” of documents he has “designated as being restricted or privileged”). Petitioner cannot revive that

argument in seeking this Court’s review. See Pennsylvania Dep’t of Corrs. v. Yeskey, 524 U.S. 206, 212-13

(1998).

II. The Decision Below Is Correct

Review is also unwarranted because the court of

appeals’ decision is correct. The court rightly concluded that Petitioner’s generalized interest in confidentiality must yield to the Select Committee’s overwhelming need for the records at issue; that the Select

Committee has demonstrated a legitimate legislative

purpose; that the request satisfies all the tests urged

by Petitioner; and that the absence of irreparable

harm, as well as the balance of the equities and the

public interest, weigh heavily against preliminary injunctive relief.

A. Executive Privilege Does Not Bar Release Of The Records

Faithfully applying this Court’s opinion in GSA,

the court of appeals correctly held that Petitioner’s assertion of privilege does not shield the requested records from disclosure. GSA made clear that a former

President “may … be heard to assert” executive privilege over Presidential communications. 433 U.S. at

439. As with executive privilege claims asserted by incumbent Presidents, however, “the privilege is a qualified one” and “must yield” to a sufficient showing of

need for disclosure. Id. at 446, 454.

In the decision below, the court of appeals correctly applied this framework to hold that the Select

Committee’s compelling and urgent need for the Presidential records at issue in this case—together with

the President’s determination that disclosure is in the

best interests of the Nation—far outweighs Petitioner’s generalized assertion that the records should

be withheld for confidentiality reasons.

1. As the court of appeals correctly concluded on

the record before it, the Select Committee has a compelling, specific interest in the Presidential records at

issue. Pet. App. 46a-49a. In addition to endangering

the lives of House Members, Senators, Congressional

staff, and law enforcement officers, the January 6 attack on the Capitol was an unprecedented attempt to

overturn the Presidential election by preventing Congress from fulfilling its duty to count the electoral

votes. Congress has a strong interest in investigating

the causes of this attack, adopting measures to prevent future attacks on Congressional proceedings, and

protecting the peaceful transfer of power. As explained in detail below, see pp. 24-29, infra, the Select

Committee needs the requested Presidential records

to understand the extraordinary events of January 6—

as well as Petitioner’s extensive efforts to undermine

the election before and after Election Day—given the

connection between Petitioner’s actions and rhetoric

and the events that unfolded that day.

2. Under GSA, President Biden’s reasoned decision that disclosure of the records is in the best interests of the Nation and the Executive Branch tilts the

balance even further in the Select Committee’s favor.

This Court has instructed that the incumbent President—as opposed to a former President—is “in the

best position to assess the present and future needs of

the Executive Branch, and to support invocation of the

privilege accordingly.” GSA, 433 U.S. at 449. “[O]nly

the incumbent is charged with performance of the executive duty under the Constitution.” Id. at 448; see

also Seila Law LLC v. CFPB, 140 S. Ct. 2183, 2191

(2020) (“Under our Constitution, the ‘executive

Power’—all of it—is ‘vested in a President,’ who must

‘take Care that the Laws be faithfully executed.’”

(quoting U.S. Const., Art. II, §§ 1, 3)). The incumbent

President therefore has a superior institutional perspective and access to better information than a former President about whether invoking executive privilege would be “for the benefit of the Republic,” weighing all the competing needs and interests of the Executive Branch and the Nation. GSA, 433 U.S. at 449.

If anything, President Biden’s determination not

to invoke executive privilege is entitled to even greater

weight than the incumbent President’s position in

GSA. In GSA, which involved a facial challenge to a

statute, there was no Executive Branch review of the

records at issue; the incumbent simply declined to support the privilege claim. Here, however—after White

House review of each document at issue—the President has determined that “Congress has a compelling

need in service of its legislative functions to understand the circumstances that led to these horrific

events.” C.A. App. 107. The President issued a “thoroughgoing analysis,” Pet. App. 44a, concluding that

“[t]he Documents shed light on events within the

White House on and about January 6 and bear on the

Select Committee’s need to understand the facts underlying” the attack, C.A. App. 107.

Although Petitioner claims (Pet. 25-26) that President Biden’s decision not to invoke executive privilege

is motivated by partisanship, he offers no factual support for that contention, which the lower courts rejected. The President’s explanation for declining to assert privilege, see C.A. App. 107-08, 133; the Select

Committee’s compelling need for the information to investigate an unprecedented attack on our Nation’s democracy; and the fact that the President has declined

to release certain requested records disprove Petitioner’s contentions.

Moreover, as this Court recognized in GSA, strong

institutional checks prevent the “political abuse” (Pet.

26) that Petitioner hypothesizes will follow. 433 U.S.

at 448. As this Court emphasized, the President is

likely to proceed cautiously before “disclosing confidences of a predecessor” given the risk that disclosure

may “discourage candid presentation of views by his

contemporary advisers.” Id. at 448. And, as the court

of appeals explained, the fact that every President will

someday be a former President provides an incentive

to ensure that the privilege is not eroded or abused.

Pet. App. 54a-55a.

3. Against these compelling interests in disclosure, Petitioner offers only generalized and unsupported assertions that maintaining confidentiality of

the records is in the best interests of the Executive

Branch. As the court of appeals explained, Petitioner

“has not identified any specific countervailing need for

confidentiality tied to the documents at issue, beyond

their being presidential communications”; he has not

“presented arguments that grapple with the substance

of President Biden’s and Congress’s weighty judgments”; and he has not “made even a preliminary

showing that the content of any particular document

lacks relevance to the Committee’s investigation.”

Pet. App. 52a. Before this Court, Petitioner again relies (Pet. 23) solely on the broad assertion that confidentiality of Presidential communications is necessary

to protect the President’s ability to receive full and

frank advice from his aides.

This Court has already made clear that a mere

“generalized interest in confidentiality” can be overcome by a sufficient showing of need. See Nixon, 418

U.S. at 711. Petitioner’s bare assertion—which contradicts the reasoned judgment of the incumbent President—is insufficient given the Select Committee’s

need for the records. Indeed, Petitioner’s fear that disclosing these records will chill Presidential aides from

providing candid advice is especially misguided because, as the White House explained, “the conduct under investigation extends far beyond typical deliberations concerning the proper discharge of the President’s constitutional responsibilities.” Pet. App. 43a.

Accordingly, any risk that disclosure would chill legitimate Presidential decision-making is negligible. The

court of appeals therefore correctly concluded that Petitioner’s asserted generalized confidentiality interest

is not “sufficient for a court to cast aside the [Select]

Committee’s exercise of core legislative functions.” Id.

at 53a.

B. The Request Serves A Valid Legislative

Purpose

The court of appeals correctly determined that the

Select Committee’s request manifestly serves a “valid

legislative purpose.” Mazars, 140 S. Ct. at 2031. Congress’s broad power of investigation is firmly established. The “power of inquiry—with process to enforce

it—is an essential and appropriate auxiliary to the legislative function.” Id. (citation omitted). This “broad”

and “indispensable” power “encompasses inquiries

into the administration of existing laws, studies of pro-

posed laws, and surveys of defects in our social, economic or political system for the purpose of enabling

the Congress to remedy them.” Id. (cleaned up).

Congress’s power to investigate nevertheless has

limits: The Select Committee’s inquiry must be “one

on which legislation could be had and would be materially aided by the information which the investigation

was calculated to elicit.” McGrain v. Daugherty, 273

U.S. 135, 177 (1927). Thus, Congress “may not issue

a subpoena for the purpose of law enforcement,” nor is

there “congressional power to expose for the sake of

exposure.” Mazars, 140 S. Ct. at 2032 (cleaned up).

This investigation easily meets these standards.

Petitioner cannot and does not dispute that legislation

“could be had” on the subjects of the Select Committee’s inquiry. And the arguments that Petitioner does

make are unavailing.

1. Petitioner asserts (Pet. 19-20) that the Select

Committee “fails to identify anything” in the records

“that would advance or inform a valid legislative purpose or specific legislation” regarding the events of

January 6. But the Select Committee cannot “identify

anything” in communications it has yet to see. In any

event, the records could inform numerous pieces of potential legislation. For example, the investigation

may yield recommendations about how Congress

should: (1) reform and amend the Electoral Count Act

of 1887; (2) enhance the legal consequences for a refusal by the Executive Branch to timely and appropriately respond to attacks on Congressional proceedings;

(3) enact additional laws or enhance existing laws to

prevent Executive Branch officials from enlisting the

Department of Justice, or other federal resources, to

support false claims about an election; or (4) revise federal law to deter Executive Branch officials from pressuring state officials to engage in election fraud. See

167 Cong. Rec. E1151 (Oct. 27, 2021) (remarks by Vice

Chair Liz Cheney adopted by Chairman Thompson);

see also Pet. App. 60a (listing other potential legislation).

2. Petitioner further contends (Pet. 20) that the

Select Committee’s request is improper because “an

investigation into alleged claims of wrong-doing is a

quintessential law enforcement task.” As this Court’s

cases recognize, however, Congress often legislates by

probing past illegality to determine why it occurred,

how it could be prevented, whether more resources

should be allocated to prevention, and whether and

how existing laws should be changed. See, e.g., Sinclair v. United States, 279 U.S. 263, 294-95 (1929);

Hutcheson v. United States, 369 U.S. 599, 617-22

(1962); McGrain, 273 U.S. at 176-77. For example, numerous statutes emerged from Congress’s investigation of Presidential wrongdoing in Watergate, including the Ethics in Government Act. See Michael A.

Fitts, The Legalization of the Presidency: A TwentyFive Year Watergate Retrospective, 43 St. Louis U. L.J.

725, 730 (1999). And Congress’s investigation into the

Teapot Dome scandal spurred passage of several reforms, including the Federal Corrupt Practices Act of

1925. See James Sample, The Last Rites of Public

Campaign Financing?, 92 Neb. L. Rev. 349, 363

(2013).

Petitioner nevertheless attempts (Pet. 17, Pet.

Supp. Br. 1-2) to impugn the Select Committee’s motives by citing public comments by certain of its Members. But this Court has long recognized that “[s]o

long as Congress acts in pursuance of its constitutional

power, the Judiciary lacks authority to intervene on

the basis of the motives which spurred the exercise of

that power.” Barenblatt v. United States, 360 U.S.

109, 132 (1959); see also Eastland v. U.S. Servicemen’s

Fund, 421 U.S. 491, 508 (1975); Watkins v. United

States, 354 U.S. 178 (1957); Wilkinson v. United

States, 365 U.S. 399, 412 (1961). The cited comments

do not detract from the fact that the Select Committee

is pursuing legislative recommendations that could be

informed by the records at issue.

3. Petitioner’s contention that the request does

not satisfy the requirements of the Presidential Records Act (Pet. 16) is likewise misguided. The records

at issue plainly “contain information that is needed for

the conduct of [the Select Committee’s] business.” 44

U.S.C. § 2205(2)(C). To properly investigate the

events of January 6, the Select Committee requires

Petitioner’s records. Petitioner led a months-long effort to overturn the Presidential election, following extensive efforts to undermine it. Ultimately, he tried to

enlist the Vice President to improperly reject States’

electoral votes; summoned supporters to Washington,

D.C., for a “wild” event on January 6; and delivered a

speech immediately preceding the attack that encouraged the crowd to march to the Capitol, insisting he

could remain President and using rhetoric such as “We

fight like Hell” and “you’ll never take back our country

with weakness.” Pet. App. 7a. Under such circumstances, any inquiry that did not insist on examining

Petitioner’s documents and communications would be

grossly insufficient.

Further, the information contained in the requested records is not “otherwise available.” 44 U.S.C.

§ 2205(2)(C). As the court of appeals explained, Petitioner has made “no showing that the [Select] Committee already has access to information about what administration officials knew about the January 6th attack, when they knew it, what actions they took in response, and how their actions might have affected the

events of that day.” Pet. App. 62a. Petitioner’s proposed requirement that the Select Committee “tr[y]

and fail[]” to obtain the information from other sources

(Pet. 16) finds no support in the language of the Presidential Records Act, and there is no other viable

source available to the Select Committee. The set of

White House documents at issue is exclusively in the

custody of the Archivist. 44 U.S.C. §§ 2201(2), 2202.

4. Petitioner’s allegation (Pet. 7, 22) that H. Res.

503 “never discusses the authority to investigate the

Executive Office of the President” is flatly wrong. The

Resolution incorporates by reference House Rule XI,

which expressly authorizes the Select Committee to

obtain documents from the President. See House Rule

XI.2(m)(3)(D).

5. Petitioner argues (Pet. 18) that the Select Committee’s request is “divorced” from its legislative function. But as the court of appeals correctly observed,

Petitioner has made “no claim that the documents at

issue in this appeal are not relevant to the Committee’s purpose or that a request capturing those documents is overbroad.” Pet. App. 63a (emphasis added).

Nor can he: “All of the documents currently at issue

pertain to presidential activities on or around January

6th, or surrounding the election and its aftermath.”

Id. Moreover, the Executive Branch, to which the request is made, and whose records (not Petitioner’s) are

sought, agrees.

To the extent Petitioner contends that requested

documents not currently at issue could be irrelevant to

the Select Committee’s legislative purpose, his claim

is not ripe, and may never ripen. See Pet. App. 63a64a. In any event, any such future claim is likely to

fail. It is reasonable for the Select Committee to reach

back to April 2020, when Petitioner began to allege

that the election would be fatally marred by voter

fraud. See p. 4, supra. The Select Committee needs

information relating to various individuals involved in

the messaging during that period to determine when

and how the seeds for the January 6 attack on our democracy were planted, which may aid Congress’s consideration of remedial legislation.

Likewise, contrary to Petitioner’s argument (Pet.

18), the Select Committee reasonably seeks documents

and communications within the White House on January 6 relating to Petitioner, other individuals, and

government agencies. That request is specific to the

date of the attack. Moreover, the listed individuals

and agencies each had a reported connection to the

January 6 attackers, were involved in “Stop the Steal”

messaging as January 6 approached, were serving in

Legislative Branch positions the day it was attacked,

were present in the White House on or before January

6 and were likely to have engaged with Petitioner and

other senior leaders who reacted to the attack, or had

security-related roles related to the attack. The scope

of the Select Committee’s inquiry simply reflects the

unprecedented nature of the attack on Congress, and

the need not to lodge an underinclusive request.

C. The Request Satisfies All Of Petitioner’s

Proposed Separation-Of-Powers Tests

Petitioner contends that the Select Committee’s

request fails various heightened standards, most

prominently the test announced by this Court in

Mazars. But the tests Petitioner presses do not govern

here, and in any event the Select Committee satisfies

them.

1. In Mazars, this Court established a four-factor

test for analyzing a Congressional subpoena for a sitting President’s personal information. The Court held

that such a request raises “significant separation of

powers issues” because “Congress and the President

have an ongoing institutional relationship as the opposite and rival political branches established by the

Constitution.” 140 S. Ct. at 2033-34, 2036 (cleaned

up). That relationship “necessarily inform[ed]” the

analysis of the subpoena. Id. at 2026. And the Court

emphasized that the subpoenas at issue sought a sitting President’s private papers, which the Court

thought could pose a “heightened risk” of impermissible purpose because of their “personal nature” and

“less evident connection to a legislative task.” Id. at

2035.

This case could hardly be more different. Here,

the “clash between rival branches of government”—

and the accompanying “significant” separation-ofpowers concerns—are absent. The request was made

after Petitioner left office and seeks official records relating to Petitioner’s communications and actions

while President, which are in the complete “ownership, possession, and control” of the United States. 44

U.S.C. §§ 2201(2), 2202. Petitioner cannot “transplant[]” the Mazars standard “root and branch” to the

Select Committee’s distinct request for a former President’s official documents. 140 S. Ct. at 2033.

To the extent Petitioner suggests in passing (Pet.

5) that the request must satisfy United States v.

Nixon, 418 U.S. 683 (1974), that test does not apply

either. Nixon involved a privilege claim by a sitting

President, and the Court evaluated whether Congress

had a “demonstrated, specific need” for the requested

records. Id. at 713. Because Petitioner is no longer

President, the analysis in GSA controls.

2. In any event, as the district court and the court

of appeals held, all the tests on which Petitioner relies

are satisfied here.

All four of the “special considerations” identified

by this Court in Mazars weigh in favor of the Select

Committee. First, Congress’s legislative purpose here

“warrants” the involvement of the President’s papers.

Mazars, 140 S. Ct. at 2035. As explained above, the

Select Committee seeks to identify and examine the

causes of the January 6 attack—and the disruption of

Congress’s constitutional duty to count the electoral

college votes—to enact legislation relating to, for example, the Presidential election process and to ensure

future peaceful transfers of power. See pp. 21-23, 2429, supra. To do so, the Select Committee needs to

know what Petitioner, his advisers, and others close to

him knew relating to the disruption of the peaceful

transfer of power, when they knew it, what actions

they took (or did not take) in response, and how their

actions influenced the attack. The Select Committee

has not been able to fully obtain that information from

any other source. See pp. 27-28, supra.

Second, the Select Committee’s request is tailored

to what is “reasonably necessary” to serve its legislative purpose. Mazars, 140 S. Ct. at 2036. The requests

are expressly connected to the events of January 6,

and the information Petitioner and those surrounding

him knew about the election outcome and the transfer

of power. See C.A. App. 33-34. And Petitioner’s contention (Pet. 21) that the request is too broad is wrong.

See pp. 24-29, supra. In any event, all the documents

in the tranches currently at issue pertain to the events

of January 6, the post-election events leading up to

January 6, and the Presidential communications and

activities related to those events. Petitioner does not,

and could not reasonably, claim that those documents

are irrelevant to the Select Committee’s purpose.

Third, the Select Committee has “adequately”

supported its request with “detailed and substantial”

evidence of its legislative objectives. 140 S. Ct. at

2036. These objectives are plainly articulated in the

authorizing resolution, its letter to the Archivist requesting the documents at issue, and various public

statements. See pp. 7-9, 24-29, supra.

Fourth, Petitioner cannot plausibly claim that the

Archivist’s compliance with the Select Committee’s request will unduly “burden[]” the Office of the President. Mazars, 140 S. Ct. at 2036. Petitioner contends

(Pet. 22) that the request will burden him “in reviewing all responsive documents,” but he fails to explain

why such a burden matters in the separation-of-powers analysis. It does not.

Further, the court of appeals correctly determined

that the Select Committee has satisfied even the demanding standard applicable to a privilege assertion

by a sitting President: The Select Committee has a

“demonstrated, specific need” for the Presidential records at issue. Nixon, 418 U.S. at 713. It cannot obtain

this information through other means. See pp. 27-28,

supra. If the Select Committee does not receive the

requested records, Congress will be hamstrung in its

ability to legislate effectively to prevent a similar future assault on American democracy.

Unsatisfied with the standards this Court has already set forth, Petitioner now proposes (Pet. 27) a

new test for challenges like this one, in which a court

weighs the incumbent’s determination, the breadth of

the requests, the time the former President has been

out of office, and whether the documents will remain

confidential. Petitioner never asked the court of appeals to adopt such a test; as the court observed, for

example, Petitioner never meaningfully argued that

the timing of the request weighed against its validity.

Pet. App. 69a-70a. In any event, the Select Committee’s request would satisfy even Petitioner’s latest proposed test: Petitioner’s interest in confidentiality—

even if somehow heightened by the timing of the request—is easily overcome by the Select Committee’s

urgent need for documents bearing on the attack on

Congress at the end of Petitioner’s Presidency.

3. Accepting Petitioner’s arguments would result

in a remarkable expansion of a former President’s interests—at the expense of the incumbent President’s

Article II authority—contravening not only GSA, but

also the Constitution. The Constitution’s text and

structure reflect the Founders’ rejection of monarchy

and perpetual power. As Alexander Hamilton explained, because the President “is to be elected

for four years … there is a total dissimilitude be-

tween him and a king of Great-Britain, who is an hereditary monarch, possessing the crown as a patrimony descendible to his heirs forever.” The Federalist

No. 69, at 414 (Alexander Hamilton) (C. Rossiter ed.,

1961); see also The Federalist No. 37, at 227 (James

Madison). This original understanding is reflected in

an early circuit decision by Chief Justice Marshall, in

which he distinguished the President from the British

monarch by explaining that it is an “essentia[l] ... difference” in our system that the President “is elected

from the mass of the people, and, on the expiration of

the time for which he is elected, returns to the mass of

the people again.” United States v. Burr, 25 F. Cas.

30, 34 (No. 14,692d) (C.C.D. Va. 1807).

Petitioner’s separation-of-powers arguments

would flout the historical understanding of the Presidency, and the court of appeals correctly rejected

them.

D. The Court Of Appeals Correctly Held

That The Equitable Factors Weigh

Against Petitioner

Petitioner also contends that the court of appeals

erred when exercising its equitable discretion, but

such exercise receives highly deferential review. See

Benisek v. Lamone, 138 S. Ct. 1942, 1945 (2018). The

court of appeals correctly exercised its discretion in

concluding that Petitioner has not shown “that he is

likely to suffer irreparable harm in the absence of preliminary relief, that the balance of equities tips in his

favor, and that an injunction is in the public interest.”

Id. at 1944 (citation omitted).

1. Petitioner notes that disclosure cannot be undone. But he cannot show that disclosure would cause

irreparable harm to the Presidency, which is what

matters in a separation of powers dispute. See Rubin

v. United States, 524 U.S. 1301, 1301-02 (1998)

(Rehnquist, J., in chambers). His contention (Pet. 30)

that disclosure will forever “shatter” executive privilege is undercut by the fact that the privilege has always been qualified. And his unsupported claim that

disclosure will cause irreparable harm to the Executive Branch is belied by the determination of the President—the person best suited to make that determination—that it will not.

2. Petitioner argues (Pet. 32) that “the public interest is served by injunctive relief because the Republic itself has a strong interest in the effective operation

of the Executive Branch without the President’s political interests interfering in that operation.” As discussed, see pp. 22-23, supra, Petitioner’s allegations of

improper political motives are unsupported. At any

rate, the Constitution itself entrusts Executive Branch

decision-making to a President elected through the political process. See Free Enter. Fund v. Pub. Co. Acct.

Oversight Bd., 561 U.S. 477, 499 (2010).

Weighing against Petitioner’s claim of harm is the

judgment of the Legislative and Executive Branches,

each of which has independently determined that disclosure of these documents is in the best interests of

the United States. See Tenn. Valley Auth. v. Hill, 437

U.S. 153, 195 (1978). Further, the court of appeals correctly found “[t]hat public interest is heightened when,

as here, the legislature is proceeding with urgency to

prevent violent attacks on the federal government and

disruptions to the peaceful transfer of power.” Pet.

App. 74a.

III. At A Minimum, This Court Should Hear The

Case On An Expedited Basis

If this Court nonetheless believes that the decision below warrants its review, the Congressional Respondents respectfully request that the case be resolved expeditiously. The Select Committee urgently

needs the documents at issue to inform its forthcoming

hearings and reports. The Select Committee’s authorization will expire on January 3, 2023, and each passing day handicaps the Select Committee’s investigation, forcing it to proceed without the benefit of documents to which it is entitled. For these reasons and

the reasons set forth in the motion for expedited consideration of the petition, if this Court grants certiorari, the Congressional Respondents respectfully request that the case be heard as early as the Court’s

February sitting.

CONCLUSION

For the foregoing reasons, the petition for a writ

of certiorari should be denied.

Respectfully submitted.