Will Donald Trump Be Allowed to Destroy His Records?
Passed in the wake of Watergate and the fight for control of Richard Nixon’s White House recordings, the Presidential Records Act provides that a president’s official records are the property of the government. (An earlier version of the Presidential Records Act, passed in 1974, applied only to Nixon.) The law allows a president to exclude personnel records, sets schedules for the release of documents after the president leaves office, and provides a mechanism for asserting executive privilege to keep certain documents secret. (Trump sued under this provision when the House Select Committee requested access to his first-term records on January 6.)
The administration, in its court filings, portrays the Presidential Records Act as an “unconstitutional and ahistorical imposition of presidential autonomy.” Starting with George Washington, who took his papers home to Mount Vernon and made no arrangements for public access, presidents have treated their records as “personal property,” the administration claims. “Just as it would run afoul of the separation of powers if Congress required the Supreme Court to widely disclose its deliberations to the public pursuant to legislative fiat, so too would the PRA.”
This story is correct but incomplete; it ignores half a century of presidential compliance. Gary Stern, who served as general counsel of the National Archives for twenty-six years, worked with five administrations – from Bill Clinton to Joe Biden – to preserve and release the presidential records. Under George W. Bush, Stern worked with then-White House counsel Brett Kavanaugh as the White House drafted an executive order implementing the law. Stern recalled that these administrations “all had their frustrations and their complaints.” But “no one ever suggested the law was unconstitutional,” he told me. “Everyone worked very constructively, including Trump 45 and his White House lawyers, to implement the PRA and make it work. »
Worse, the Administration’s narrative directly contradicts a Supreme Court decision. In 1977, the justices rejected Nixon’s claim that the previous version of the Presidential Records Act violated the separation of powers and violated executive privilege. The Court, voting 7-2, said that given the “safeguards built into the law” to protect confidential information and “the minimal nature of the intrusion into presidential privacy, we believe that claims of presidential privilege must clearly yield to Congress’s important purposes of preserving the records and maintaining access to them for lawful governmental and historical purposes.” » In the decades since, of course, historians have mined the recordings and other presidential documents. Imagine an alternate world in which Nixon would have been free to destroy these records.
The OLC opinion, signed by Assistant Attorney General T. Elliot Gaiser, overruled this precedent. Nixon’s case, he asserted, “stands out because it involved a significantly narrower law in extraordinary circumstances.” Even more boldly, the opinion adds, “the Court’s analysis of separation of powers is flawed” because it fails to recognize that “Congressional regulation of presidential records involves the fundamental constitutional principle of executive independence.” He rejected the majority opinion of liberal Justice William Brennan, calling it a reflection of an outdated conception of the separation of powers, stemming from the old regime, before a conservative majority adopted a new, bloated interpretation of executive power.
The OLC also discounted congressional testimony the following year by Deputy Attorney General Larry Hammond. “It is well established that work product of government employees prepared at the direction of their employer or in the course of their employment is the property of the government,” Hammond told lawmakers. “If Congress chose to extend this principle to documents prepared or received by the President in the course of his duties, no substantial problem would, in our view, be raised.” The OLC opinion addressed this embarrassing testimony in a footnote: “This advice has not stood the test of time. »
I recently spoke with Sarah Weicksel, executive director of the American Historical Association. She admitted: “Ordinary people might think, ‘Oh, what does this have to do with me?’ In fact, it has a lot to do with all of us. Presidential records are essential for the transfer of power between administrations and help lawmakers understand how past decisions were made. They are essential for historians who come five, ten, fifteen, fifty, a hundred years later, to ask historical questions about an administration or about American life in the 1920s. I think the most important issue is the ability of Americans, in twenty or fifty years, to have access to a complete history of the United States over this period. Future historians may find themselves searching in vain for records of presidential decisions about whether to launch war against Iran, fire Cabinet secretaries, or issue pardons.
