## Facts

- A House Select Committee investigating the January 6, 2021 Capitol attack sought presidential records from the National Archives concerning communications and events during Donald J. Trump’s presidency.
- The incumbent President (Joseph R. Biden, Jr.) declined to assert executive privilege and authorized release of the requested records.
- Former President Trump asserted executive privilege over many of the records and sued to prevent their disclosure.
- The D.C. Circuit rejected Trump’s privilege claims under the standards he proposed and concluded the claims would fail even if he were the incumbent President.
- Trump filed an emergency application in the Supreme Court seeking a stay of the D.C. Circuit’s mandate and an injunction barring release of the records pending review.

## Issues

1. Whether to grant emergency relief staying the D.C. Circuit’s mandate and enjoining disclosure of the requested presidential records pending Supreme Court review.
2. Whether, and in what circumstances, a former President may obtain a court order preventing disclosure of privileged presidential records when the incumbent President has declined to assert the privilege.

## Decision

- The Supreme Court (per curiam) denied Trump’s application for a stay and injunction.
- The Court reasoned that the D.C. Circuit rejected Trump’s privilege claims without regard to his status as a former President and found the claims would fail even if he were the incumbent.
- Because Trump’s status “made no difference” to the D.C. Circuit’s analysis, the Supreme Court did not resolve the broader constitutional question regarding a former President’s ability to counter an incumbent’s waiver.
- The Court stated that the D.C. Circuit’s discussion concerning Trump’s status as a former President must be treated as nonbinding dicta.
- Justice Thomas indicated he would grant the application.
- Justice Kavanaugh wrote separately to agree with denying relief on this posture, while stating that the D.C. Circuit’s suggestions limiting a former President’s ability to invoke presidential communications privilege were dicta and expressing disagreement with them.

## Legal Principles

- Emergency relief may be denied where the applicant’s asserted privilege claims fail under the governing analysis even assuming the applicant’s preferred status-based framing.
- When a lower court’s judgment does not turn on an asserted constitutional question (here, former-President versus incumbent-President status), broader statements addressing that question may be treated as nonbinding dicta.
- The Supreme Court’s denial of emergency relief does not decide the merits of “whether and in what circumstances” a former President can block disclosure of privileged records when the incumbent President has declined to assert privilege.
- Presidential communications privilege is grounded in Article II; at least one Justice signaled that a former President must retain some ability to invoke that privilege for communications from his tenure, even without support from the incumbent.

## Conclusion

The Supreme Court denied former President Trump’s emergency request to block release of presidential records to the House Select Committee, leaving the D.C. Circuit’s judgment in place and allowing disclosure, while expressly declining to decide the unresolved question of a former President’s power to overcome an incumbent President’s decision not to assert executive privilege and characterizing contrary lower-court discussion as dicta.


Trump v. Thompson, 142 S. Ct. 680 (2022)