Amicus Curiae 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 briefJan 4, 2022
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No. 21-932
In the
Supreme Court of the United States
DONALD J. TRUMP,
Petitioner,
v.
BENNIE G. THOMPSON, et al.,
Respondents.
On Petition for a Writ of Certiorari to the United
States Court of A ppeals for the D.C. Circuit
MOTION FOR LEAVE TO FILE AND BRIEF OF
AMICI CURIAE STATES UNITED DEMOCRACY
CENTER AND FORMER FEDERAL, STATE, AND
LOCAL OFFICIALS IN SUPPORT OF RESPONDENTS
Joshua Perry
E. Danya Perry
A nna M. Skotko
Sophia G. Weinstock
Perry Guha LLP
1740 Broadway, 15th Floor
New York, NY 10019
(212) 399-8330
Norman L. Eisen
Counsel of Record
States United Democracy
Center
1420 K Street, NW
Washington, DC 20005
(202) 656-8178
norm@statesuniteddemocracy.org
Counsel for Amici Curiae
309934
A
(800) 274-3321 • (800) 359-6859
MOTION FOR LEAVE TO FILE
Pursuant to Supreme Court Rule 37.2(b), amici
curiae respectfully move for leave to file the attached
brief in support of Respondents. On December 10, 2021,
counsel gave written notice to all parties of intent to file
this amicus brief. Respondents consented in writing, and
petitioner notified counsel in writing that he did not object.
Amici include former state and local officials who
have an important stake in ensuring that the events of
January 6 never recur. In our coordinate federal system,
states and their subdivisions commit resources, time,
and energy to collecting, counting, and certifying votes
for presidential electors. The January 6 assault on our
democracy disrupted the culmination of extraordinary
work by state and local officials. Amici want to see
Congress take steps to ensure that nothing like January
6 ever happens again. And Congress needs the documents
that it seeks here in order to do its job of fact finding and
developing legislative solutions.
Amici have a distinct perspective on the merits,
the harms, and the public interest at stake here, and
their brief includes relevant material not brought to
the attention of the Court by the parties that may be of
considerable assistance.
First: Amici, as former officials, explain the integral
importance in our constitutional order of smooth
transitions of power in which former officeholders defer,
and fully cede their erstwhile powers and prerogatives,
to their duly-elected successors.
Second: Amici explain that January 6 was not an
isolated incident. It was, instead, a graphic instantiation of
an ongoing crisis that threatens public safety and the free
and fair elections upon which democracy depends. That
is why the public interest and the balance of the equities
weigh heavily in favor of prompt disclosure. The relief that
former President Trump seeks would deeply injure the
public by preventing Congress from swiftly developing
legislation to protect our democracy in advance of the
upcoming federal election cycle.
For the foregoing reasons, amici respectfully request
that they be allowed to file the attached brief.
Dated: January 4, 2022
Respectfully submitted,
Joshua Perry
E. Danya Perry
A nna M. Skotko
Sophia G. Weinstock
Perry Guha LLP
1740 Broadway, 15th Floor
New York, NY 10019
(212) 399-8330
Norman L. Eisen
Counsel of Record
States United Democracy
Center
1420 K Street, NW
Washington, DC 20005
(202) 656-8178
norm@statesuniteddemocracy.org
Counsel for Amici Curiae
i
TABLE OF CONTENTS
Page
TABLE OF CONTENTS . . . . . . . . . . . . . . . . . . . . . . . . . . i
TABLE OF CITED AUTHORITIES . . . . . . . . . . . . . . iii
INTERESTS OF AMICI . . . . . . . . . . . . . . . . . . . . . . . . . 1
I N T RODUC T ION A N D SU M M A RY OF
ARGUMENT . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2
ARGUMENT . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6
I.
PETITIONER CANNOT PREVAIL ON
THE MERITS OR SHOW IRREPARABLE
HARM . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6
A. Petitioner Cannot Show a Likelihood
of Success on the Merits Because His
Attempt to Assert Executive Privilege
Is Contrary to Our Antimonarchical
Constitutional Order . . . . . . . . . . . . . . . . . . . 6
B. The Incumbent President Is Empowered
to Decide What Will Harm the Executive
Office . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8
II. The Balance of the Equities
and the Public Interest Favor
Rapid Disclosure . . . . . . . . . . . . . . . . . . . 10
ii
Table of Contents
Page
A. The Equities and Public Interest
Strongly Favor Swift Disclosure,
Accountability, and a Congressional
Response to the Ongoing Attack on
Democracy . . . . . . . . . . . . . . . . . . . . . . . . . . 11
1.
The Violent Insurrection of January
6 Was the Manifestation of a LongRunning Campaign Against Free,
Fair, and Secure Elections . . . . . . . . . . 11
2. After January 6, Opponents of
Democracy Have Continued their
Push to Undermine Free and Fair
Elections—Including Through
Reprehensible Attacks on State
and Local Election Officials . . . . . . . . . 16
3.
State and Local Officials Urgently
Need Congress to Armor Our
Democracy Against Ongoing
Attack . . . . . . . . . . . . . . . . . . . . . . . . . . . 19
B. The Equities and Public Interest
Weigh Heavily Against an Injunction
in Light of Petitioner’s History of
Using Protracted Litigation to Run
Out the Clock on Accountability . . . . . . . . 20
CONCLUSION . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 24
APPENDIX . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1a
iii
TABLE OF CITED AUTHORITIES
Page
CASES
Comm. on the Jud., U.S. House of Rep. v. Donald
F. McGahn, Jr.,
415 F. Supp. 3d 148 (D.D.C. 2019) . . . . . . . . . . . . . . . 22
Comm. on Oversight and Gov’t Reform, U.S.
House of Rep. v. Barr,
No. 16-5078, 2019 WL 2158212
(D.C. Cir. May 14, 2019) . . . . . . . . . . . . . . . . . . . . . . . 23
Comm. on Oversight and Gov’t Reform, U.S.
House of Rep. v. Lynch,
156 F. Supp. 3d 101 (D.D.C. 2016) . . . . . . . . . . . . . . . 23
Nixon v. GSA,
433 U.S. 425 (1977) . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6
Nken v. Holder,
556 U.S. 418 (2009) . . . . . . . . . . . . . . . . . . . . . . . . . . . 10
Pearson v. Kemp,
No. 20-4809, 2020 WL 7040582
(N.D. Ga. Nov. 29, 2020) . . . . . . . . . . . . . . . . . . . . . . . 14
Prize Cases,
67 U.S. 635 (1862) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7
Trump v. Mazars USA, LLP,
140 S. Ct. 2019 (2020) . . . . . . . . . . . . . . . . . . . . . . . . . 22
iv
Cited Authorities
Page
Trump v. Mazars USA, LLP,
No. 19-1136, 2021 WL 3602683
(D.D.C. Aug. 11, 2021) . . . . . . . . . . . . . . . . . . . . . . . . . 23
Trump v. Thompson,
No. 21-5254, 2021 WL 5832713
(D.C. Cir. Dec. 9, 2021) . . . . . . . . . . . . . . . . . . . . . . .6, 8
Trump v. Thompson,
No. 21-2769, 2021 WL 5218398
(D.D.C. Nov. 9, 2021) . . . . . . . . . . . . . . . . . . . . . . . 6, 21
United States v. Rumely,
345 U.S. 41 (1953) . . . . . . . . . . . . . . . . . . . . . . . . . . . . 21
Watkins v. United States,
354 U.S. 178 (1957) . . . . . . . . . . . . . . . . . . . . . . . . . . . 23
Winter v. Nat. Res. Def. Council, Inc.,
555 U.S. 7 (2008) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5
Constitutional Provisions, Statutes,
and Regulations
U.S. Const. art. I, § 8 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7
U.S. Const. art. II, § 1 . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7
v
Cited Authorities
Page
Other Authorities
Tim Alberta, The Michigan Republican Who
Stopped Trump, Politico (Nov. 24, 2020),
https://tinyurl.com/j59nb6zu . . . . . . . . . . . . . . . . . . . 15
Rebecca Beitsch & Maggie Miller, Trump’s
Call for Poll Watchers Sparks Fears of Voter
Intimidation, The Hill (Sept. 30, 2020),
https://tinyurl.com/br9rv8rd . . . . . . . . . . . . . . . . . . . 11
Katie Benner, Trump Pressed Justice Dept. to
Declare Election Results Corrupt, Notes Show,
N.Y. Times (July 30, 2021), https://tinyurl.com/
k2unwe8 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 15
Brennan Ctr. for Just. & Bipartisan Pol’y Ctr.,
Election Officials Under Attack (June 16,
2021), https://tinyurl.com/yy93pubv . . . . . . . . . . 17, 18
Christina A. Cassidy, Election Officials Face
Complex Challenges Looking to 2022, Associated
Press (Aug. 15, 2021), https://tinyurl.com/
8ea4bjdd . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 20
Jonathan Cooper, Officials Describe Threats
Following 2020 Election, Associated Press
(Oct. 26, 2021), https://tinyurl.com/j8sp6mtj . . . . 3, 18
vi
Cited Authorities
Page
William Cummings et al., By the Numbers:
President Donald Trump’s Failed Efforts to
Overturn the Election, USA Today (Jan. 6, 2021),
https://tinyurl.com/2p88w56n . . . . . . . . . . . . . . . 13, 14
DFR Lab, Just Security, #StopTheSteal: Timeline
of Social Media and Extremist Activities
Leading to 1/6 Insurrection (Feb. 10, 2021),
https://tinyurl.com/2x4834f4 . . . . . . . . . . . . . . . . . . . 13
Louise Burnham Dunbar, A Study of “Monarchical”
Tendencies in the United States, from 1776 to
1801 (1922) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7
Stephen Fowler, Fulton Elections Director Rick
Barron to Resign, GPB News (Nov. 4, 2021),
https://tinyurl.com/4rmzr83z . . . . . . . . . . . . . . . . . . . 18
Amy Gardner, “I Just Want to Find 11,780
Votes”: In Extraordinary Hour-Long Call,
Trump Pressures Georgia Secretary of State
to Recalculate the Vote in His Favor, Wash.
Post (Jan. 3, 2021), https://wapo.st/3wYfyI4 . . . . . . . 15
Joey Garrison, “Nonsense”: Election Experts
Reject Trump’s Claim that Foreign Countries
Co u l d Co u n t e r fe i t Mi l li o n s of Mai l in Ballots, U.S.A. Today (June 22, 2020),
https://tinyurl.com/39k94v65 . . . . . . . . . . . . . . . . . . . 13
vii
Cited Authorities
Page
Drew Griffin, “We’re Coming for You”: Election
Director Shares Threatening Voicemail, CNN
(Aug. 27, 2021), https://tinyurl.com/5839du7w . . . . . 17
A d a m K e l s ey, Tr u m p Ad v i s e r Pr e di c t s
Sunbelt Sweep, Misleads on Post-Election
Co un tin g, A BC Ne w s ( Nov. 1, 2 0 2 0),
https://tinyurl.com/32b2sx48 . . . . . . . . . . . . . . . . . . . 13
Tim Kephart, Secy. of State Raffensperger
Backs Aide as Trump Refuses to Back Down,
WGCL-TV (Dec. 2, 2020), https://tinyurl.com/
2mttdvry . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .14
Sam Levine, “It’s Been a Barrage Every Day”:
US Election Workers Face Threats and
Harassment, The Guardian (Nov. 1, 2021),
https://tinyurl.com/jpjxv9u3 . . . . . . . . . . . . . . . . . . . 18
Eric Levitz, Trump on His Supporters Attacking
Protesters: “That’s What We Need More of”, N.Y.
Mag. (Mar. 11, 2016), https://nym.ag/2VTiJ78 . . . . 12
Kevin Liptak, Trump Seeks to Delegitimize
Vote Even as His Campaign Says Math
Will Turn His Way, CNN (Nov. 4, 2020),
https://tinyurl.com/y7yddwum . . . . . . . . . . . . . . . . . 14
viii
Cited Authorities
Page
Joshua Matz et al., States United Democracy Ctr.,
Guide to Counting Electoral College Votes
and the January 6, 2021 Meeting of Congress
(Jan. 4, 2021), https://tinyurl.com/3kdamh2y . . . . . . . 2
Maggie Miller, Former Top Officials Warn
D e m o c r a c y i n “Je o p a r d y ” w i t h o u t
Congressional Action on Election Security,
The Hill (Nov. 10, 2021), https://tinyurl.com/
x93n4d8 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 20
Brian Naylor, Michigan Lawmakers Meet Trump
Amid Efforts To Overturn Election Results,
NPR (Nov. 20, 2020), https://tinyurl.com/
uh2htbck . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 15
Erin Patrick O’Connor & W hitney Shefte,
Clint Hickman Faced Death Threats for
Telling the Truth, Wash. Post (Oct. 31, 2021),
https://tinyurl.com/m6ntss8v . . . . . . . . . . . . . . . . . . . 17
Andrew Oxford, Secretary of State Warns of Threats
to Election Workers, Ariz. Pub. Media News
(Oct. 6, 2021), https://tinyurl.com/ukwp5z2r . . . . . . 18
Matt Petr illo, “ We’re Coming af ter You”:
Phil a d elphia El ectio ns Of f icial s Still
Receiving Death Threats Following 2020
Presidential Election, CBS Phila. (Nov. 1, 2021),
https://tinyurl.com/f2heafxv . . . . . . . . . . . . . . . . . . . . 3
ix
Cited Authorities
Page
PRRI, Competing Visions of America: Findings
from the 2021 American Values Survey
(Oct. 2021) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 19
Nicholas Reimann, Conspiracy Theories Swirl
After Democrat Phil Murphy Reelected New
Jersey Governor—But There’s No Evidence
of Widespread Fraud, Forbes (Nov. 4, 2021),
https://tinyurl.com/er5dzt2v . . . . . . . . . . . . . . . . . . . 19
Laurent Sacharoff, Former Presidents and
Executive Privilege, 88 Tex. L. Rev. 301
(2009) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7, 8
Laura Santhanam, As Election Day Nears,
Most U.S. Adults Say Future of Democracy
Is Under Threat, PBS News Hour (Nov. 1,
2021), https://tinyurl.com/5mn6en5k . . . . . . . . . . . . 19
Fredreka Schouten & Kelly Mena, Falsehoods
and Death Threats Haunt Local Election
Workers Weeks After Capitol Siege, CNN (Feb.
13, 2021), https://tinyurl.com/3zb7wm9a . . . . . . . . . 16
Katie Shepherd, Armed Protesters Alleging
Voter Fraud Sur rounded the Home of
Michigan’s Secretary of State, Wash. Post
(Dec. 7, 2020), https://wapo.st/3yXBRip . . . . . . . . . . 15
x
Cited Authorities
Page
Katie Shepherd, Trump Cheers Supporters
Who Swamped a Biden Bus in Texas, Wash.
Post (Nov. 2, 2020), https://wapo.st/3kbgp5j . . . . . . 12
Allan Smith, Trump on Peaceful Transition
if He Loses: “Get Rid of The Ballots” and
“There Won’t Be a Transfer”, NBC News
(Sept. 23, 2020), https://tinyurl.com/yeff49tr . . . . . . 12
Matt Smith, Election Officials Still Face Violent
Threats in Wake of 2020 Election , Ask
FBI to Do More, WISN (Nov. 12, 2021),
https://tinyurl.com/5n57hh9f . . . . . . . . . . . . . . . . . . . . 3
Linda So, Trump-Inspired Death Threats Are
Terrorizing Election Workers, Reuters,
(June 11, 2021), https://reut.rs/36D3CRa . . . . . . . . . 16
Linda So & Jason Szep, U.S. Election Workers
Get Little Help from Law Enforcement as
Terror Threats Mount, Reuters (Sept. 8,
2021), https://tinyurl.com/auwk8jnw . . . . . . . . . . . . . 17
Juana Summers, Trump Push to Invalidate
Votes in Heavily Black Cities Alar ms
Civil Rights Groups, NPR (Nov. 24, 2020),
https://tinyurl.com/y2a4ryw7 . . . . . . . . . . . . . . . . . . 14
xi
Cited Authorities
Page
Jason Szep & Linda So, Trump Campaign
Demonized Two Georgia Election Workers –
and Death Threats Followed, Reuters (Dec.
1, 2021), https://tinyurl.com/k8wxy3zs . . . . . . . . . . 3
Jane C. Timm & Henry J. Gomez, Trump’s
Stolen Election Lie Is on the Ballot in 2022,
Thanks to These Candidates, NBC News (Oct.
16, 2021), https://tinyurl.com/yw9dfrw2 . . . . . . . . . 24
Aruna Viswanatha et al., White House Forced
Georgia U.S. Attorney to Resign, Wall St. J.
(Jan. 9, 2021), https://tinyurl.com/ndw5bkpt . . . . . . 15
Daniel White, Donald Trump Tells Crowd to
“Knock the Crap Out Of” Hecklers, TIME
(Feb. 1, 2016), https://tinyurl.com/845tysnc . . . . . . . 12
Woodrow Wilson, Congressional Government:
A Study in American Politics (1913) . . . . . . . . . . . . 21
Justin Wise, Trump Suggests That It Could
Get “Very Bad” if Military, Police, Biker
Supporters Play “Tough”, The Hill (Mar.
14, 2019), https://tinyurl.com/xtmx9h4c . . . . . . . . . . 12
11 Charles Alan Wright & Arthur R. Miller, Federal
Practice & Procedure § 2904 (3d ed. 2021) . . . . . . . 22
1
INTERESTS OF AMICI1
States United Democracy Center (“States United”) is
a national, nonpartisan organization that works with state
and local officials to protect free, fair, and secure elections
and to hold those who attack our democracy accountable
through litigation, advocacy, and investigations. States
run elections, and the state and local officials who oversee
elections have unique power and responsibility to defend
voting laws that ensure access to the ballot box and protect
our election results. States United supports those state
and local officials, who are front-line guardians of our
democracy.
The individual amici are former state, local, and
federal officials who are members of States United’s
Advisory Board. Their names and titles are listed in
the Appendix that follows this brief. As former elected
or appointed officials from both parties, they are
committed to engaging and empowering pro-democracy
leadership. Among the individual amici are former officials
with responsibility for law enforcement and elections
administration at the state and local levels. That includes
former federal officials who worked closely with state
leaders doing elections work.
1. No party’s counsel authored this brief in whole or in part, and
no person other than amici or their counsel funded its preparation
or submission. Counsel of record for all parties received notice, at
least ten days prior to the filing date, of amici’s intention to file this
brief. In writing, Respondents consented, and Petitioner expressed
that he does not object, to the filing of this brief. A motion for leave
to file accompanies this brief.
2
This case goes to the heart of amici’s interests. Former
President Donald Trump is trying to invoke a privilege
that belongs to the office he lost in a free and fair election.
At bottom, the case is about whether Congress will secure
the information it needs to armor our democracy against
the ongoing assault that manifested in the insurrection
of January 6, 2021.
State and local officials have an important stake in
ensuring that the events of January 6 never recur. In our
coordinate federal system, states and their subdivisions
commit vast resources, time, and energy to collecting,
counting, and certifying votes for presidential electors. 2
The January 6 assault on our democracy disrupted the
culmination of extraordinary work by state and local
officials. Amici want to see Congress swiftly legislate
protections so that nothing like January 6 ever happens
again.
INTRODUCTION AND SUMMARY
OF ARGUMENT
Donald Trump filed his preliminary injunction motion
in this case on October 19, 2021, telling the District
Court—just as he told the appellate court, and as he now
tells this Court—that there can be no harm in delaying
disclosure of information relating to the planning and
implementation of the January 6 insurrection. Exactly
one week later, the Associated Press reported that
2. See generally Joshua Matz et al., States United Democracy
Ctr., Guide to Counting Electoral College Votes and the January
6, 2021 Meeting of Congress, (Jan. 4, 2021), https://tinyurl.
com/3kdamh2y.
3
Arizona Secretary of State Katie Hobbs has at times
required round-the-clock security because her life is being
threatened for the offense of fairly counting the votes
cast on Election Day. 3 On November 1—while briefing
on Trump’s requested injunction was underway in the
District Court—Philadelphia election officials were still
getting vicious death threats relating to the 2020 election.4
On November 12—with Trump’s appeal already lodged in
the U.S. Court of Appeals for the D.C. Circuit—Wisconsin
election officials turned to the media to beg the FBI to
do more about the persistent threats to their safety that
began during the 2020 election season. 5 On December 1,
a day after this case was argued before the D.C. Circuit,
Reuters reported on the campaign of fear that drove a
Georgia poll worker into hiding.6
January 6 is not over. The state and local officials who
administer our elections are still under threat. Our future
elections, including a national midterm election less than
11 months away, are vulnerable.
3. Jonathan Cooper, Officials Describe Threats Following
2020 Election, Associated Press (Oct. 26, 2021), https://tinyurl.com/
j8sp6mtj.
4. Matt Petrillo, “We’re Coming after You”: Philadelphia
Elections Officials Still Receiving Death Threats Following 2020
Presidential Election, CBS Phila. (Nov. 1, 2021), https://tinyurl.
com/f2heafxv.
5. Matt Smith, Election Officials Still Face Violent Threats in
Wake of 2020 Election, Ask FBI to Do More, WISN (Nov. 12, 2021),
https://tinyurl.com/5n57hh9f.
6. Jason Szep & Linda So, Trump Campaign Demonized
Two Georgia Election Workers – and Death Threats Followed,
Reuters (Dec. 1, 2021), https://tinyurl.com/k8wxy3zs.
4
The House of Representatives’ Select Committee to
Investigate the January 6th Attack on the United States
Capitol (the “Select Committee”) seeks records from
the National Archives and Records Administration (the
“Archives”) so it can understand the ongoing attack on our
democracy that manifested on January 6 and recommend
legislation to protect and improve our elections systems
and our mechanisms for the peaceful transfer of power.
President Joseph Biden has decided not to invoke the
executive privilege, clearing the path for disclosing the
records.
Now, seeking to overturn the will of the sitting
legislative and executive branches, former President
Trump is trying to unilaterally prevent the Archives
from releasing those records. The District Court properly
denied Trump’s request for a preliminary injunction. A
panel of the Circuit Court unanimously affirmed. And
this Court should deny certiorari as expeditiously as
possible. Any undue delay in disclosure unnecessarily
impedes the Select Committee’s urgent work of defending
our democracy.
Amici speak in particular to aspects of Trump’s
petition that implicate the interests of state and local
election and law enforcement officials, urging this Court
to reaffirm principles that are central to the integrity of
our democracy and that inform amici’s own approaches
to their current and former work.
First: Amici—who include former federal, state,
and local officials—know that former officeholders in
our democratic system have no authority to invoke their
old powers by fiat and in defiance of the incumbent. The
5
peaceful transfer of power imbues a newly elected official
with all the powers of the office—and sends former officials
home as nothing more nor less than private citizens. In
keeping with that critically important democratic norm,
our fundamentally antimonarchical Constitution withheld
any powers from former presidents. Without proffering
any evidence of particularized harm from the disclosure
of any document, Trump asks this Court to simply accept
as a blanket proposition that he knows the interests of
the executive and the republic better than our elected
officials. That is a principle abhorrent to our Constitution
and our democracy, and it is why Trump cannot prevail
on the merits.7
Second: State and local election and law enforcement
officials know that January 6 was not an isolated incident.
It was, instead, a graphic instantiation of an ongoing
crisis that threatens public safety and the free and fair
elections upon which democracy depends. That is why
the public interest and the balance of the equities weigh
heavily in favor of prompt disclosure. The relief that
Trump seeks would deeply injure the public, both by
frustrating accountability for the attempt to overthrow
our government and by preventing Congress from
developing legislation to protect our democracy.
7. To prevail on a motion for a preliminary injunction, the
movant bears the burden of showing that: (1) “he is likely to succeed
on the merits”; (2) “he is likely to suffer irreparable harm in the
absence of preliminary relief”; (3) “the balance of equities tips in
his favor”; and (4) “an injunction is in the public interest.” Winter v.
Nat. Res. Def. Council, Inc., 555 U.S. 7, 20 (2008).
6
ARGUMENT
I. PETITIONER CANNOT PREVAIL ON THE
MERITS OR SHOW IRREPARABLE HARM
A. Petitioner Cannot Show a Likelihood of
Success on the Merits Because His Attempt to
Assert Executive Privilege Is Contrary to Our
Antimonarchical Constitutional Order
Ex-presidents have the prerogative to object to the
release of documents from their term in office. Nixon
v. GSA, 433 U.S. 425 (1977). But Donald Trump seeks
to prevent the release of Congressionally requested
documents without proffering any evidence or even
advancing any specific argument about any individual
record. See Trump v. Thompson, No. 21-5254, 2021 WL
5832713, at *21 (D.C. Cir. Dec. 9, 2021) (noting that Trump
“has not pointed to a single record in the existing tranches”
that implicates a sensitive question, and concluding that
“Mr. Trump’s disagreement with President Biden’s
judgment, by itself, provides the court no basis to override
the sitting President’s judgment”). Because he does not
engage on the merits, Trump’s position amounts to the
assertion not just that his powers persist unabated but
that they are even greater than the powers of the person
elected to do the job of the presidency. As the District
Court properly observed, this is an idea suited to a
monarchy, not to our constitutional republic: “Presidents
are not kings, and Plaintiff is not President.” Trump v.
Thompson, No. 21-2769, 2021 WL 5218398, at *8 (D.D.C.
Nov. 9, 2021).
7
“The Constitution,” as one scholar observes, “makes
no provision for former Presidents. It vests them with
no powers, titles, or role whatsoever; it does not even
provide them a pension.” 8 As former officials who
themselves swore an oath to uphold the Constitution,
amici are acutely aware that the Framers never encoded
the proposition that a president could exercise perpetual
power, or indeed any power at all, after the end of their
elected term. U.S. Const. art. II, § 1 (providing that the
president “shall hold his office during the term of four
years”). Every power given to the president was qualified
and capped as to both scope and duration. For instance:
Even as Commander in Chief, where presidential powers
may be at their broadest, see Prize Cases, 67 U.S. 635
(1862), the president cannot declare war. U.S. Const. art.
I, § 8, cl. 11. And the prohibition against a foreign-born
president was not simple nativism—it was a deliberately
“antimonarchical provision designed to prevent a foreign
prince from being installed as a monarchical President.” 9
Similarly, the prohibition against a president younger
than 35 was not just age discrimination. Instead, it was
designed to stop a son from replacing his father as in royal
systems.10 It is impossible to imagine George Washington,
who famously refused a throne, exercising the executive
privilege like a king in exile from Mount Vernon, over the
waiver of John Adams.11
8. Laurent Sacharoff, Former Presidents and Executive
Privilege, 88 Tex. L. Rev. 301, 302 (2009).
9. Id. at 322.
10. Id.
11. See Louise Burnham Dunbar, A Study of “Monarchical”
Tendencies in the United States, from 1776 to 1801, at 40-49 (1922)
(describing Washington’s retirement).
8
While the Constitution gives no role to former
presidents, it affirmatively grants incumbents the power
and responsibility to share information with Congress.
It requires the president, among other things, to
“‘give to the Congress Information of the State of the
Union,’ recommend measures to Congress, and state
his objections to a bill he has vetoed.”12 Beyond those
explicit requirements, the job of the presidency inherently
requires the president to communicate regularly, both
formally and informally, with Congress. In particular, as
the D.C. Circuit noted, the sitting president is perpetually
involved in a “give-and-take” with Congress over providing
records and testimony. Trump v. Thompson, No. 21-5254,
2021 WL 5832713, at *10 (D.C. Cir. Dec. 9, 2021). Trump
proposes that a former president can block the incumbent
from fulfilling those solemn constitutional duties by fiat.
He cannot prevail on the merits, because endorsing his
argument would mean rejecting our Constitution’s text
and structure.
B. The Incumbent President Is Empowered to
Decide What Will Harm the Executive Office
Trump sues here, as he must, “in his capacity as
the 45 th President of the United States.” And so, to
show irreparable harm, he must show that releasing the
records would somehow harm not Trump, the defeated
ex-president, but the office of the presidency. He cannot,
because he is not the right person to assert the presidency’s
interests.
12. Sacharoff, supra note 8, at 329.
9
Mr. Trump disagrees with President Biden’s policy
determinations. That is his right as a citizen, but he has
no corresponding power. So again, Trump’s claim fails
in the face of a fundamental democratic principle: Just
as the incumbent is the only person entitled to wield the
powers of the presidency, he also is the only person entitled
to make policy determinations about what is helpful or
harmful to the Executive Office.
Amici, as former officials, would never have imagined
the possibility that they could continue to exercise the
powers of their offices to overrule their successors. Nor
would they have imagined that their own personal interests
could control decisions about their official papers. But Mr.
Trump apparently forgets that this suit is supposed to be
about protecting the presidency. Instead, he foregrounds
his own personal interest. “The limited interest the
Committee may have in immediately obtaining the
requested records,” Trump’s petition wrongly contends,
“pales in comparison to President Trump’s interest in
securing judicial review before he suffers irreparable
harm.” Pet. 32 (emphasis added).
This is either about Trump or it is about the presidency.
Either way, though, he cannot win: Executive privilege
does protect Trump as a private person from suffering
irreparable harm, and the presidency is in new hands. In
the end, this Court is asked to decide who gets to wield
the powers of the presidency and safeguard the Executive
Office—the person who won the election, or the person
who did not. That is not a hard call. The people already
have resolved this case.
10
II. The Ba la nce of the Equities a nd
t h e Pu blic I n t erest Favor R a pid
Disclosure
Trump can show neither that he is likely to succeed
on the merits nor that the denial of the injunction would
do irreparable harm. His case is even weaker on the
remaining injunction factors. The balance of the equities
and the public interest—which merge here, where the
federal government is the defendant, Nken v. Holder, 556
U.S. 418, 435 (2009)—weigh heavily in favor of prompt
disclosure. Even a temporary injunction in Trump’s favor
would substantially harm the public, both by frustrating
expeditious accountability for the attempt to overthrow
the government and by preventing Congress from
developing legislative fixes to protect our democracy.
In his petition for certiorari, Trump downplays the
urgency of the moment: “Respondents would suffer
virtually no harm by delaying production while the
parties litigate the request’s validity. And while Congress
is certainly free to set its own timeframe to conduct
its business, the Electoral Counts Act [sic] will not be
triggered for three years.” Pet. 32. But the crisis facing
our nation is both urgent and ongoing. It threatens to
compromise every election in this country—including the
national election less than 11 months away.
11
A. The Equities and Public Interest Strongly
Favor Swift Disclosure, Accountability, and a
Congressional Response to the Ongoing Attack
on Democracy
1. The Violent Insurrection of January 6
Was the Manifestation of a Long-Running
Campaign Against Free, Fair, and Secure
Elections
The campaign to overturn the will of the people
began long before November 3, 2020. Its strategies have
included intimidation, threats of violence, and the baseless
insistence that the election was tainted by fraud. These
strategies matter here because they were redeployed
repeatedly through January 6, and they have become all
too common in American political life in the aftermath of
the Capitol invasion. Their pervasiveness speaks to the
urgency of Congress’s quest for information.
In the run-up to Election Day, the Trump campaign
and some of its allies called, in increasingly audible dogwhistles, for an intimidating “army” of poll-watchers.13
These calls for voter intimidation carried such force
because of Trump’s long history of soliciting and
encouraging violence against his opponents. During the
2016 campaign, Trump promised to provide legal defense
for thugs willing to “knock the crap” out of protestors at
13. See, e.g., Rebecca Beitsch & Maggie Miller, Trump’s Call
for Poll Watchers Sparks Fears of Voter Intimidation, The Hill
(Sept. 30, 2020), https://tinyurl.com/br9rv8rd (describing Trump
camp’s call for an “army” of poll watchers).
12
his rallies.14 When violence—predictably—ensued, he
crowed: “That’s what we need more of.”15 His supporters,
he bragged, were “tough people” who “don’t play it tough—
until they go to a certain point, and then it would be very
bad, very bad.”16 When a pickup truck caravan of armed
Trump supporters besieged a Biden campaign bus on a
Texas highway in October 2020, Trump expressed delight,
tweeting “I LOVE TEXAS” along with the video of the
frightening highway confrontation.17
This valorization of violence extended to dark threats
about what would happen if Trump lost. In September of
2020, Trump refused to commit to a peaceful transition of
power: “There won’t be a transfer,” he said. “[W]e’re going
to have to see about what happens. You know that I’ve
been complaining very strongly about the ballots, and the
ballots are a disaster.”18 This was a theme. Trump wanted
14. Daniel White, Donald Trump Tells Crowd to “Knock
the Crap Out Of” Hecklers, TIME (Feb. 1, 2016), https://tinyurl.
com/845tysnc.
15. Eric Levitz, Trump on His Suppor ters Attacking
Protesters: “That’s What We Need More of”, N.Y. Mag. (Mar. 11,
2016), https://nym.ag/2VTiJ78.
16. Justin Wise, Trump Suggests That It Could Get “Very Bad”
If Military, Police, Biker Supporters Play “Tough”, The Hill (Mar.
14, 2019), https://tinyurl.com/xtmx9h4c.
17. Katie Shepherd, Trump Cheers Supporters Who Swamped
a Biden Bus in Texas, Wash. Post (Nov. 2, 2020), https://wapo.
st/3kbgp5j.
18. Allan Smith, Trump on Peaceful Transition if He Loses:
“Get Rid of The Ballots” and “There Won’t Be a Transfer”, NBC
News (Sept. 23, 2020), https://tinyurl.com/yeff49tr.
13
to keep his opponents from voting. But if they voted him
out of office, Trump was ready with an explanation: Any
election that did not result in his victory was, necessarily,
fraudulent and stolen.
The false cries of fraud grew louder as the election
drew closer. According to partisans trying to discredit
our election system, mail-in voting—a tried-and-true
method in red states and blue—would open the door to
“foreign countries” counterfeiting millions of ballots.19
Trump would lead in the original returns, the narrative
went, but Democrats would somehow “steal” the election
as ballots were counted. 20 That drumbeat, warning of
a stolen election, sounded throughout: “Stop the steal”
echoed over and over on Trump’s Twitter feed and those
of his biggest supporters. 21
The anti-democratic strategies first deployed prior to
Election Day became a constant over the days and months
after President Biden’s 7 million vote victory. Just as he
had promised, Trump immediately and baselessly began
to complain of a “rigged” election. 22 His false allegations
19. Joey Garrison, “Nonsense”: Election Experts Reject
Trump’s Claim that Foreign Countries Could Counterfeit Millions
of Mail-in Ballots, U.S.A. Today (June 22, 2020), https://tinyurl.
com/39k94v65.
20. Adam Kelsey, Trump Adviser Predicts Sunbelt Sweep,
Misleads on Post-Election Counting, ABC News (Nov. 1, 2020),
https://tinyurl.com/32b2sx48.
21. DFR Lab, Just Security, #StopTheSteal: Timeline of Social
Media and Extremist Activities Leading to 1/6 Insurrection (Feb.
10, 2021), https://tinyurl.com/2x4834f4.
22. See William Cummings et al., By the Numbers: President
Donald Trump’s Failed Efforts to Overturn the Election, USA
14
were backed by a propaganda machine spinning up
conspiracy theories of fraud allegedly perpetrated by
everyone from Detroit voters to deceased Venezuelan
dictator Hugo Chavez. 23 Throughout it all was endless,
and often abusive, litigation—at least 62 lawsuits, filed
in states across the country, seeking relief ranging from
recounts to audits to the wholesale suspension of the
public vote. Again and again Trump and his allies alleged,
without ever proving, that somehow the election was stolen
from Trump. 24
The pre-Election Day intimations of violence, too,
grew uglier in the aftermath of Trump’s loss. Online and
flesh-and-blood mobs began stalking and intimidating
election officials, urging them to tilt the count in Trump’s
favor or seeking to punish them for their refusal. 25 In one
of the most frightening episodes, Michigan Secretary of
Today (Jan. 6, 2021) https://tinyurl.com/2p88w56n (tallying 75 times
that Trump claimed the election was “rigged” on Twitter, between
May of 2020 and January 6, 2021); Kevin Liptak, Trump Seeks to
Delegitimize Vote Even as His Campaign Says Math Will Turn His
Way, CNN (Nov. 4, 2020), https://tinyurl.com/y7yddwum.
23. See, e.g., Juana Summers, Trump Push to Invalidate
Votes in Heavily Black Cities Alarms Civil Rights Groups, NPR
(Nov. 24, 2020), https://tinyurl.com/y2a4ryw7; Pearson v. Kemp,
No. 20-4809, 2020 WL 7040582 (N.D. Ga. Nov. 29, 2020), appeal
dismissed, 831 F. App’x 467 (11th Cir. 2020) (federal case brought by
conspiracy theorists who alleged, without proof, that a Hugo Chavezdesigned software system, manipulated by Iran and China, somehow
corrupted votes in U.S. swing states against President Trump).
24. Cummings, supra note 22 (tallying 62 lawsuits).
25. See, e.g., Tim Kephart, Secy. of State Raffensperger Backs
Aide as Trump Refuses to Back Down, WGCL-TV (Dec. 2, 2020),
https://tinyurl.com/2mttdvry.
15
State Jocelyn Benson’s house was besieged by armed
“Election Truthers” while she tried to decorate for the
holidays. 26
Meanwhile, Trump and his closest advisors whipped
up the mob and sought to convince election administrators
and other officials to cheat. Trump himself stooped
to tactics that ranged from pressuring the Georgia
Secretary of State to “find 11,780 votes” to summoning
Michigan lawmakers to the White House to urge them
to legislatively override the popular vote. 27 Trump’s
team leaned on officials in the federal government too,
summarily removing a U.S. Attorney who refused to
investigate nonexistent election offenses in Georgia and
demanding that the DOJ assert unsubstantiated claims
of fraud. 28
26. Katie Shepherd, Armed Protesters Alleging Voter Fraud
Surrounded the Home of Michigan’s Secretary of State, Wash. Post
(Dec. 7, 2020), https://wapo.st/3yXBRip.
27. See, e.g., Amy Gardner, “I Just Want to Find 11,780
Votes”: In Extraordinary Hour-Long Call, Trump Pressures
Georgia Secretary of State to Recalculate the Vote in His Favor,
Wash. Post (Jan. 3, 2021), https://wapo.st/3wYfyI4; Brian Naylor,
Michigan Lawmakers Meet Trump Amid Efforts To Overturn
Election Results, NPR (Nov. 20, 2020, 12:49 PM), https://tinyurl.
com/uh2htbck; Tim Alberta, The Michigan Republican Who Stopped
Trump, Politico (Nov. 24, 2020), https://tinyurl.com/j59nb6zu.
28. Aruna Viswanatha et al., White House Forced Georgia U.S.
Attorney to Resign, Wall St. J. (Jan. 9, 2021), https://tinyurl.com/
ndw5bkpt; Katie Benner, Trump Pressed Justice Dept. to Declare
Election Results Corrupt, Notes Show, N.Y. Times (July 30, 2021),
https://tinyurl.com/k2unwe8.
16
As former state and local officials, or federal ones who
have worked closely with the states, amici understand the
devastating impact of this unprecedented campaign on
those like Secretary Benson and the thousands of others
who are on the front lines of administering our elections.
The public interest and equities strongly favor Congress
obtaining the information it needs in order to prevent
the recurrence of such conduct, including in the midterm
election in November of this year.
2. After January 6, Opponents of Democracy
Have Continued their Push to Undermine
Free and Fair Elections—Including
Through Reprehensible Attacks on State
and Local Election Officials
January 6 did not emerge ex nihilo, and its aftermath
has been characterized by the same destructive strategies.
Perhaps most troublingly, the attacks on amici’s former
colleagues—state and local election officials—have not
stopped. 29 To the contrary: They are sickeningly prevalent
and deeply corrosive to worker morale and effectiveness. 30
Since the storming of the Capitol, partisans have
continued to aim death threats at officials all around the
country who dare to administer and count a fair vote. On
January 7, the day after the insurrection failed to derail
the will of the people, workers at the Republican Nevada
Secretary of State’s office were subjected to vicious
29. Linda So, Trump-Inspired Death Threats Are Terrorizing
Election Workers, Reuters (June 11, 2021), https://reut.rs/36D3CRa.
30. Fredreka Schouten & Kelly Mena, Falsehoods and Death
Threats Haunt Local Election Workers Weeks After Capitol Siege,
CNN (Feb. 13, 2021), https://tinyurl.com/3zb7wm9a.
17
death threats: “I hope you all go to jail for treason,” said
the caller. “I hope your children get molested. You’re all
going to f------ die.” 31 Tricia Raffensperger, the wife of
Georgia’s Republican Secretary of State, got a late-night
text message: “You and your family will be killed very
slowly.” 32 In Philadelphia, Republican Commissioner Al
Schmidt absorbed anti-Semitic threats that drove his
family into hiding. 33 The chair of the Maricopa County,
Arizona board of supervisors, a Republican, affirmed that
Biden won fair and square, only to face “furious protests
and violent threats” that “have turned his life upside
down.” 34 As of August 2021, Milwaukee election director
Clare Woodall-Vogg had received 150 violent threats. 35
The threats have become a terrifying part of the job
even for line staff. “The intimidation in Georgia,” Reuters
reported, “has gone well beyond Raffensperger and his
family. Election workers—from local volunteers to senior
administrators—continue enduring regular harassing
phone calls and emails.” In 2021, a poll found that “one
31. Linda So & Jason Szep, U.S. Election Workers Get Little
Help from Law Enforcement as Terror Threats Mount, Reuters
(Sept. 8, 2021), https://tinyurl.com/auwk8jnw.
32. So, supra note 29.
33. Brennan Ctr. for Just. & Bipartisan Policy Ctr., Election
Officials Under Attack 4 (June 16, 2021), https://tinyurl.com/
yy93pubv.
34. Erin Patrick O’Connor & Whitney Shefte, Clint Hickman
Faced Death Threats for Telling the Truth, Wash. Post (Oct. 31, 2021,
8:00 AM), https://tinyurl.com/m6ntss8v.
35. Drew Griffin, “We’re Coming for You”: Election Director
Shares Threatening Voicemail, CNN (Aug. 27, 2021), https://tinyurl.
com/5839du7w.
18
in three election officials feel unsafe because of their job,
and nearly one in five listed threats to their lives as a jobrelated concern.” 36
The ongoing threats are driving effective and
principled people, like those with whom amici served,
away from administering elections. Arizona Secretary
of State Hobbs, who absorbed some of the worst abuse
after President Biden’s win in her state, fears that the
threats are contributing to high employee turnover37—and
that the results could damage election administration. 38
Rick Barron, the lead election official in Georgia’s Fulton
County, who faces regular abuse and threats, warns that
good people are being chased out of the job: “There are
a lot of people leaving the profession. So I think you’re
gonna end up with more inexperienced people running
these offices. You’re going to see people in these types of
jobs for a shorter period of time because the stress, after a
while, it’s hard to ignore it all the time.”39 He should know:
Mr. Barron himself announced on November 3, 2021 that
he will resign, “as the county continues to face attacks,
conspiracy theories and a state-run performance review
following the 2020 election.”40
36. Brennan Ctr., supra note 33, at 4.
37. Andrew Oxford, Secretary of State Warns of Threats to
Election Workers, Ariz. Pub. Media News (Oct. 6, 2021), https://
tinyurl.com/ukwp5z2r.
38. Cooper, supra note 3.
39. Sam Levine, “It’s Been a Barrage Every Day”: US Election
Workers Face Threats and Harassment, The Guardian (Nov. 1, 2021),
https://tinyurl.com/jpjxv9u3.
40. Stephen Fowler, Fulton Elections Director Rick Barron
to Resign, GPB News (Nov. 4, 2021), https://tinyurl.com/4rmzr83z.
19
3.
State and Local Officials Urgently Need
Cong ress to Armor Our Democracy
Against Ongoing Attack
On November 1 of 2021—with this lawsuit fully
underway, and Mr. Trump seeking delay at every turn—
PBS Newshour reported that 81% of U.S. adults fear that
“the future of U.S. democracy is under threat.”41 We are
coming up on the one-year anniversary of the January 6
insurrection, but still election officials live and work in
fear. The cries of election fraud reliably echo after Trumpidentifying candidates lose.42 The Big Lie is a part of our
public discourse now. Fully 30% of Americans believe it,
and the constantly repeated lies and conspiracy theories
have bred deep mistrust in our ability to run free and fair
elections.43
The ongoing threat matters urgently because we are
less than a year away from the next round of national
elections, and we still have not fully confronted what
happened in the last one, much less passed necessary
legislative reforms. As bipartisan former national security
officials recently warned, the time to act is now. “We call
on Congress to confront these threats and safeguard
41. Laura Santhanam, As Election Day Nears, Most U.S.
Adults Say Future of Democracy Is Under Threat, PBS News Hour
(Nov. 1, 2021), https://tinyurl.com/5mn6en5k.
42. Nicholas Reimann, Conspiracy Theories Swirl After
Democrat Phil Murphy Reelected New Jersey Governor—But
There’s No Evidence of Widespread Fraud, Forbes (Nov. 4, 2021,
https://tinyurl.com/er5dzt2v.
43. PRRI, Competing Visions of America: Findings from the
2021 American Values Survey 35 (Oct. 2021).
20
our democratic process as we look ahead to the 2022
elections and beyond,” announced a group including
former Homeland Security secretaries Michael Chertoff
and Janet Napolitano.44 That group urged Congress to
pass legislation aimed at protecting election officials—the
frontline democracy workers placed in danger by the past
year’s attack on our democracy.45
As former officials, including state and local officials,
amici know that their national security colleagues are
right. Enjoining and further delaying release of the
records would deeply harm the public interest, which
demands that Congress take swift action. To do that,
Congress urgently needs the information that it seeks
from the Archives.
B. The Equities and Public Interest Weigh Heavily
Against an Injunction in Light of Petitioner’s
History of Using Protracted Litigation to Run
Out the Clock on Accountability
Trump’s contention that delay will not harm the
public or the parties is belied by the grave risk that he
44. Maggie Miller, Former Top Officials Warn Democracy in
“Jeopardy” Without Congressional Action on Election Security, The
Hill (Nov. 10, 2021), https://tinyurl.com/x93n4d8.
45. See Christina A. Cassidy, Election Officials Face Complex
Challenges Looking to 2022, Associated Press (Aug. 15, 2021),
https://tinyurl.com/8ea4bjdd (“State election officials say they are
confronting a myriad of challenges heading into the 2022 midterm
elections, from threats of foreign interference and ransomware to
changes of election laws and concerns of physical safety—all while
still dealing with a wave of misinformation and disinformation
surrounding last year’s presidential election.”).
21
will orchestrate a prolonged and—from our democracy’s
perspective—painful delay in the Select Committee’s
work. Trump has a history of protracted litigation of
privilege claims to indefinitely put off accountability.
The District Court correctly found that “discovering
and coming to terms with the causes underlying the
January 6 attack is a matter of unsurpassed public
importance because such information relates to our
core democratic institutions and the public’s confidence
in them.” Trump v. Thompson, No. 21-2769, 2021 WL
5218398, at *17 (D.D.C. Nov. 9, 2021). Any delay can be
fatal to Congress’s informing function. In the words of
former President Woodrow Wilson:
Unless Congress have and use every means
of acquainting itself with the acts and the
disposition of the administrative agents of
the government, the country must be helpless
to learn how it is being served; and unless
Congress both scrutinize these things and sift
them by every form of discussion, the country
must remain in embarrassing, crippling
ignorance of the very affairs which it is most
important that it should understand and direct.
United States v. Rumely, 345 U.S. 41, 43 (1953) (quoting
Woodrow Wilson, Congressional Government: A Study
in American Politics 303 (1913)). By the time this Court
reviews this brief, the one-year anniversary of January 6
may have passed. With the 2022 and 2024 federal elections
on the horizon, Americans need to learn facts that may
influence their decisions, and Congress has an obligation to
deliver that information and pass prescriptive legislation.
22
To delay until more ballots are cast or new leadership
is convened is “to give the appellant the ultimate relief
being sought.”46
Trump and his allies have repeatedly tried to delay
requests for information until congressional inquiries
are rendered essentially impotent. For example, in 2019,
the House Judiciary Committee sought testimony from
White House Counsel Donald McGahn relating to Trump’s
alleged obstruction of the Mueller investigation. After
the White House instructed McGahn not to testify, the
Judiciary Committee sued to compel compliance. Comm.
on the Jud., U.S. House of Rep. v. Donald F. McGahn, Jr.,
415 F. Supp. 3d 148 (D.D.C. 2019). The district court ruled
against McGahn, who appealed. Over two years later, and
one week before the D.C. Circuit was scheduled to hear
the matter en banc, the parties reached an agreement
regarding McGahn’s testimony. The timing was no
accident—the Mueller investigation had long concluded,
and Trump was out of office.
The long and winding path in Trump v. Mazars
USA, LLP, 140 S.Ct. 2019 (2020), is another example of
Trump’s strategic use of litigation to avoid meaningful
disclosure. In February 2019, after hearing testimony
that Trump had changed the estimated value of his assets
and liabilities on financial statements prepared by his
accounting firm, Mazars USA, LLP, the House Oversight
Committee subpoenaed Mazars for documents related
to Trump and his businesses. Trump sued, seeking a
ruling that the subpoena was invalid and unenforceable.
After the district court ordered Mazars to comply,
46. 11 Charles Alan Wright & Arthur R. Miller, Federal
Practice & Procedure § 2904 (3d ed. 2021).
23
Trump began a process of appeal and delay that did not
conclude until July 2020—when, well over a year and a
half after the subpoena had issued, the Supreme Court
held that Congress’ “broad” and “indispensable” power
to obtain information extends to the executive branch and
the president himself. Mazars, 140 S. Ct. at 2031 (citing
Watkins v. United States, 354 U.S. 178, 187 (1957)).
However, the Court also remanded the case to the
lower courts to apply a new standard to the subpoenas
at issue. In August 2021—well after Trump was no
longer president and after the subpoena had reissued—
the district court again found that the congressional
subpoenas are valid. Trump v. Mazars USA, LLP, No.
19-1136, 2021 WL 3602683 (D.D.C. Aug. 11, 2021). Trump
has again appealed. Nearly three years after Congress
issued a lawful subpoena to pursue records related to its
investigation, the public is still waiting for a resolution.47
Anything like that here would do irreparable harm to
our republic.
47. Mr. Trump is not the only president to use protracted
litigation to forestall congressional inquiries. The Republicancontrolled House’s effort to compel executive branch testimony as
part of its investigation into Operation Fast and Furious during
the Obama administration met a similar fate. In June 2012, after
producing about 7,600 pages to the House, then-President Obama
invoked executive privilege to withhold documents that “were not
generated in the course of the conduct of Fast and Furious.” In
2016, the district court ruled that the records in question were not
covered by privilege. Comm. on Oversight and Gov’t Reform, U.S.
House of Rep. v. Lynch, 156 F. Supp. 3d 101 (D.D.C. 2016). The House
lawsuit to try to recover the records was ultimately settled in April
2019, after control of the House had shifted to Democrats. Comm.
on Oversight and Gov’t Reform, U.S. House of Rep. v. Barr, No.
16-5078, 2019 WL 2158212 (D.C. Cir. May 14, 2019).
24
CONCLUSION
On October 13, 2021, only five days before Mr. Trump
filed this case, he sent an email to NBC News: “If we don’t
solve the Presidential Election Fraud of 2020, Republicans
will not be voting in ’22 or ’24.”48 Whatever else can be said
about that statement, whose premise is false and whose
conclusion is dubious, Trump is right that the 2020 election
saw an existential threat unleashed on this country. He is
right that the threat must be answered, if we want future
elections to succeed. But he is wrong about the source of
the threat. And he is terribly wrong, through this lawsuit,
to stand in the way of a resolution.
For all the reasons set forth in this brief and in
respondents’ briefs, this Court should refuse an injunction
pending appeal and deny certiorari as soon as practicable.
The Select Committee must be allowed speedily to
continue with its urgent, important work of promoting
accountability and protecting our democracy.
Date: January 4, 2022
48. Jane C. Timm & Henry J. Gomez, Trump’s Stolen Election
Lie Is on the Ballot in 2022, Thanks to These Candidates, NBC News
(Oct. 16, 2021), https://tinyurl.com/yw9dfrw2.
25
Respectfully submitted,
Joshua Perry
E. Danya Perry
A nna M. Skotko
Sophia G. Weinstock
Perry Guha LLP
1740 Broadway, 15th Floor
New York, NY 10019
(212) 399-8330
Norman L. Eisen
Counsel of Record
States United Democracy
Center
1420 K Street, NW
Washington, DC 20005
(202) 656-8178
norm@statesuniteddemocracy.org
Counsel for Amici Curiae
APPENDIX
1a
Appendix
Appendix — NAMES
AND TITLES OF
INDIVIDUAL AMICI
Gregory A. Brower (Assistant Director and Deputy
General Counsel, FBI, 2016-2018)
Steve Bullock (Montana Governor, 2013-2021)
Tom Coleman (Missouri Congressman, 1976-1993)
Jack Conway (Kentucky Attorney General, 2008-2016)
Frankie Sue Del Papa (Nevada Attorney General, 19912003)
John J. Farmer, Jr. (New Jersey Attorney General, 19992002)
Trey Grayson (Kentucky Secretary of State, 2004 to 2011)
Jim Hood (Mississippi Attorney General, 2004-2020.
Dr. Rachel Kleinfeld (Senior Fellow, Carnegie Endowment
for International Peace)
Jahna Lindemuth (Alaska Attorney General, 2016-2018)
Patricia Madrid (New Mexico Attorney General, 19992007)
Tom Rath (New Hampshire Attorney General, 1978-1980)
Joyce Vance (U.S. Attorney, Northern District of
Alabama, 2009-2017)
2a
Appendix
Sarah R. Saldaña (Director, U.S. Immigration and
Customs Enforcement, 2014-2017)
Michael Steele (Maryland Lieutenant Governor, 20032007)
Christine Todd Whitman (New Jersey Governor, 1994
to 2001)
William F. Weld (Massachusetts Governor, 1991-1997)
This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.