Killing History: DOJ’s Office of Legal Counsel (OLC) declares the Presidential Records Act unconstitutional

 

“Every record has been destroyed or falsified, every book rewritten, every picture has been repainted, every statue and street building has been renamed, every date has been altered. And the process is continuing day by day and minute by minute. History has stopped. Nothing exists except an endless present in which the Party is always right.”

―George Orwell, 1984

Enacted in 1978, in the wake of Watergate, the Presidential Records Act (PRA) makes all records created or received by the President, Vice President, and their staff in the course of official duties the property of the United States government. They are explicitly not the personal property of the officials whose desks they cross. The law mandates they be transferred to the National Archives and Records Administration (NARA) as soon as a President leaves office.

Remember the stories during Trump’s first term in office about how he would tear his papers up into tiny shreds, forcing his staff to retrieve them and tape them back together? That happened because of the PRA.

The PRA is the law. It’s clear. Presidents are advised about the requirement when they take office. So, the reports that Trump was destroying his records should have been taken as an early warning sign of his utter disregard for the law. Instead, they were treated more like a cute affectation, a sign that this was an outsider who was new to being a political insider. At most, he was a little difficult to work for.

The report in Politico began like this: Solomon Lartey spent the first five months of the Trump administration working in the Old Executive Office Building, standing over a desk with scraps of paper spread out in front of him.

Lartey, who earned an annual salary of $65,969 as a records management analyst, was a career government official with close to 30 years under his belt. But he had never seen anything like this in any previous administration he had worked for. He had never had to tape the president’s papers back together again.

Armed with rolls of clear Scotch tape, Lartey and his colleagues would sift through large piles of shredded paper and put them back together, he said, “like a jigsaw puzzle.” Sometimes the papers would just be split down the middle, but other times they would be torn into pieces so small they looked like confetti.

Trump seems to have learned a lesson from all of this, but it’s the wrong one. That perception may also have been shaped when the National Archives contacted him after he left office to seek the return of classified documents still in his possession. We all know how that ended up. So, this term, Trump had his law firm, the government agency formerly known as the Justice Department, issue an opinion declaring the PRA unconstitutional. You can find it here, running to 52 pages.

“You have asked,” it begins, “whether the Presidential Records Act of 1978 (“PRA” or “Act”) is constitutional.” The answer follows immediately: “We conclude that it is not.” There are two reasons, either of which, standing on its own, would have been sufficient to undo the PRA. The opinion explains that they are “interlocking.” 

The Act “exceeds Congress’s enumerated and implied powers”, and it also “aggrandizes the Legislative Branch at the expense of the constitutional independence and autonomy of the Executive.” In other words, we’re watching another power grab by this administration, a stratagem to expand the power of the executive at the expense of Congress, while claiming it’s the other way around.

That opinion came from the Office of Legal Counsel at DOJ. Part of that office’s job is to provide legal advice to the President and executive branch agencies. It issues formal opinions; reviews proposed executive orders and legislation for constitutionality and resolves legal disputes within the executive branch. Its decisions are authoritative and they bind executive branch employees, not just the folks at DOJ.

The current Assistant Attorney General in charge of the Division is T. Elliot Gaiser. He clerked for a trifecta of Federalist Society hardliners: Supreme Court Justice Samuel Alito, Judge Neomi Rao on the D.C. Circuit, and Judge Edith Jones on the Fifth Circuit. He graduated from Hillsdale College, known for its conservative Christian principles. Gaiser became Ohio’s solicitor general in 2023 and was billed by the state’s Republican AG at the time as “a master craftsman of ironclad legal arguments rooted in originalist principles and constitutional restraint.”

Gaiser’s opinion regarding the PRA concludes that it “unconstitutionally intrudes on the independence and autonomy of the President.” The result is that “the President need not further comply with its dictates.” But the Supreme Court held that a nearly identical law was constitutional almost 50 years ago when President Nixon, upon leaving office, challenged the first version of the PRA. The OLC opinion fails to explain why that case is no longer good precedent. Gaiser seems to have simply, with the stroke of a pen, overruled the Supreme Court.

The American Historical Society (AHA) and American Oversight, a nonprofit that promotes transparency in government, promptly sued. They begin by writing, “This case is about the preservation of records that document our nation’s history, and whether the American people are able to access and learn from that history.” 

They explain that both plaintiff organizations and their members “rely heavily on access to historical records about the inner workings of the federal government to undertake their missions” and that their ability to do their work “will be significantly harmed by Defendants’ actions.”

The AHA explains that if the PRA comes to an end, they will no longer have access to the information that makes it possible for them to “create the historical record of presidential activities,” which would leave them with an “incomplete historical record by which to professionally research, produce scholarship on, and teach U.S. history.” 

They point out that once lost, the records and the opportunity to record history are gone. AHA has some gravitas in this regard: It was their 1910 request to Congress following the discovery that many records from the 1800s were missing that ultimately led to the creation of the National Archives, according to their lawsuit.

The case will be heard by federal District Judge Beryl Howell in the District of Columbia. The plaintiffs are asking the court to declare that OLC got it wrong and that the PRA is constitutional. They want an injunction that will prevent Trump from taking Presidential records away with him when his time in office comes to an end. The relief they are asking for would explicitly prevent him from relying on the OLC opinion.

The Justice Department will have to defend its opinion in court. Judge Howell has already ruled against the Trump administration in two cases: one involving a law firm Trump targeted by an executive order, and another rejecting the government’s assertion that it could make warrantless immigration arrests in cases where there was no evidence the target was a flight risk. 

Previously, she ruled in 2019 that DOJ had to turn over sealed grand jury evidence from Special Counsel Robert Mueller’s investigation to House investigators. In her opinion, she called the arguments the administration mustered to oppose releasing the evidence a "farce."

None of these cases presupposes how she will rule in the current one; the issues before her are different. But she has a strong predilection for enforcing the bounds of the executive branch’s constitutional authority—the issue that will be presented here. Intuitively, it makes sense to preserve our history. The question the administration should have to answer here is: Why wouldn’t it?

Back to Orwell: “Nothing exists except an endless present in which the Party is always right.”

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We’re in this together,

-Joyce Vance