WASHINGTON D.C. (KEYT) – The American Historical Association filed a lawsuit challenging the Trump Administration's recent assertion that it would not need to retain records in accordance with federal law.
"Since its founding in 1884, the American Historical Association has advocated for the preservation of federal records," stated Dr. Sarah Weicksel, executive director of the American Historical Association. "The AHA's 1910 argument in support of establishing a National Archives remains true in this current fight for preservation: these records are 'materials which historians must use in order to ascertain the truth.' Presidential records are essential for transparency and accountability in our democracy; they are also essential sources for researching and understanding the American past. Those records and the history they tell belong not to any individual, but to the American people."
On April 1 of this year, the Department of Justice issued a slip opinion stating the Presidential Records Act of 1978 is unconstitutional because it exceeds Congress' Constitutional authority and improperly limits the independence of the executive branch.
"The PRA [Presidential Records Act] exceeds the oversight power because it serves no identifiable and valid legislative purpose," opened the slip opinion created by the Justice Department earlier this month. "It exceeds any preservation power because Congress cannot preserve presidential records merely for the sake of posterity. It exceeds Congress’s regulatory power over statutory agencies because it purports to regulate a constitutional office—the Presidency— that Congress did not create and that Congress cannot abolish. It exceeds the spending power, because that power allows Congress to incentivize outcomes with federal funding, not to directly regulate coordinate branches of government. And it exceeds Congress's power to assist in the execution of the powers vested in coordinate branches because it restricts rather than empowers the President."
The Department of Justice concluded, "the PRA is unconstitutional, and the President need not furthercomply with its dictates."
In response to the preemptive interpretation of federal records law, the American Historical Association and American Oversight filed their suit Tuesday, April 7, in U.S. District Court for the District of Columbia.
"The Executive Branch has declared the power to override the legal determinations of the U.S. Supreme Court, in order to override the laws passed by Congress to preserve and provide public access to official records of the President's activities. The Executive Branch has nullified the determinations of the other two branches of government so that the President may claim these official government records to behis own," opened Tuesday's complaint and request for injunctive relief. "Days ago, the Office of Legal Counsel (OLC) advised the White House that the President may disregard the Presidential Records Act—the longstanding federal law requiring the preservation of records reflecting the official activities of the President, the Vice President, and White House staff. As of this moment, the Administration believes that the President is legally free to destroy records of his official government conduct, or even spirit away the records for his own future personal use. In the Administration’s view, the records of the official activities of the President and nearly 1,000 White House employees—generated using taxpayer funds, on government property, regarding official government business—belong to the President personally, and not to the American people. Government for the people, by the people, and of the people this is not."
The American Historical Association is a non-profit organization incorporated by Congress in 1889, "for the promotion of historical studies, the collection and preservation of historical manuscripts and for kindred purposes in the interest of American history and of history in America."
The other plaintiff, American Oversight, is a non-partisan, non-profit founded to promote transparency in government and noted in the lawsuit it has at least five pending Freedom of Information Act requests for presidential records from President Trump's first term.
The Presidential Records Act of 1978 was passed after the resignation of President Nixon and authorized the Administrator of General Services to take custody of 42 million pages of documents and 880 taped records of conversations during his terms while also prohibiting the destruction of those materials.
It was signed into law by President Ford and challenged by the former-President Nixon in federal court.
A three-judge panel rejected former-President Nixon's legal claims that the law "offends the autonomy of the Executive Branch" and instead found that the preservation law "serves the national interest by preserving materials upon which historians must draw in order accurately to recount and to judge the political history of our time" as well as "needed to ensure their availability for successive administrations engaged in policymaking".
The Supreme Court later affirmed the lower court's opinion upholding the law.
"OLC [the Department of Justice's Office of Legal Counsel] quickly made clear, however, the real reason it did not treat Nixon v. GSA [former President Nixon's challenge to the law] as controlling: OLC simply believes the Supreme Court's decision was 'wrong'," noted Tuesday's lawsuit regarding the decisions made regarding the law in federal courts. "OLC described the case as 'wrong' (twice) and 'mistaken,' and asserted that the Supreme Court 'fail[ed] to appreciate the Article II consequences of permitting Congress to regulate presidential records.' OLC relied almost exclusively on its own prior opinions to explain why it was right and the Supreme Court was wrong; over the span of four single-spaced pages of analysis, OLC did not cite a single judicial precedent to support its analysis or conclusions."
The Justice Department argued that federal courts ruled against former-President Nixon due to his personality stating, "Nixon v. [General Services] Administrator's failure to appreciate the Article II consequences of permitting Congress to regulate presidential records is, in a sense, understandable. Its analysis concerned the records of a scandal ridden President who had already left office; it did not address the burdens imposed by a forward-looking scheme like the PRA on incumbent Presidents."
The Presidential Records Act generally makes applicable materials available to the public five years after a President leaves office and transferred custody of the information to the National Archives.
Members of the public can request access to documents through the Freedom of Information Act if they are not publicly available.
The law also has a process for President's to dispose of certain records with the permission of the Archivist and after notice has been provided to Congress.
Former Presidents have broad discretion to delay the release of any records up to 12 years in certain cases and can also assert a claim of privilege for certain documents, but must consult with both the Archivist and the sitting President before that determination can be made.
"[T]he PRA may chill the President's advisers from offering candid or unpopular advice, because there is uncertainty as to whether the President will invoke the privilege on that specific topic," argued the April 1 slip opinion from the Justice Department.
According to Tuesday's lawsuit, this is the first Presidential Administration since the Presidential Records Act took effect to challenge the federal preservation law.
"[B]efore April of this year, neither the President nor his Administration suggested that the PRA unduly interfered with the Executive Branch or that they believed the PRA to violate the constitutional separation of powers. No Administration had openly declared that it was free to "not further comply with [the PRA's] dictates," nor had any prior Administration advised officials and staff covered by the PRA that they need not preserve all Presidential records as defined under the PRA," detailed the lawsuit. "Indeed, far from denying the applicability or constitutionality of the PRA, President Trump rather argued in federal court that the PRA authorized him to retain once-classified records from his administration after his presidency, and therefore shielded him from criminal liability."
In 2014, Congress expanded the Presidential Records Act to include electronic records and required federal officials to use official government email accounts when sending or forwarding any presidential records electronically.
"This is the most heinous, the most serious thing that I've ever seen involving justice in the United States — in the history of the United States," argued then-candidate Trump during a rally in Ocala, Florida in 2016 regarding email exchanges between then-Secretary of State Clinton with staffers while using a private email before adding that Clinton "has to go to jail" for the violation of the federal preservation law.
"We have a person that has committed crimes that is now running for the presidency," candidate Trump concluded in 2016.
"Upon leaving office, President Trump kept significant numbers of official records, rather than transferring them to NARA [National Archives and Records Administration] as required," noted Tuesday's lawsuit. "NARA ultimately collected 15 boxes containing thousands of documents from President Trump's personal residence at Mar-a-Lago. Following NARA's collection, the Federal Bureau of Investigation conducted a search of Mar-a-Lago, identifying more official documents, including over 100 documents marked as classified."
"At no point has President Trump stated or otherwise accepted that he was required under the PRA to turn over custody and control over his documents to the National Archives upon leaving office. Rather, he has declared a right to keep classified and other documents that are squarely Presidential records under the PRA," added Tuesday's lawsuit. "In light of this history of conduct, and OLC's permission to President Trump to disregard the PRA, there is a substantial likelihood that President Trump will keep or destroy numerous records after his term in office that the PRA requires to be sent to NARA."
The Justice Department argued that due to the risk that President Nixon might destroy materials after stepping down from the position, Congress passed a law specific to materials related to his terms as the head of the Executive Branch arguing that that specific form of document preservation was legitimate.
"Congress enacted the PRMPA [Presidential Recordings and Materials Preservation Act of 1974] in the wreckage of Watergate, in the face of the very real and imminent probability that former President Nixon would destroy documents proving misconduct," noted the Department of Justice in its April 1 opinion. "The PRMPA and the PRA could not be more different. The PRMPA sought a discrete set of identified materials under extraordinary circumstances—a President's resignation amidst constitutional crisis, ongoing criminal investigations, and the very imminent possibility of the destruction of recordings directly relevant to the Watergate scandal."
The Justice Department did find that, "Other provisions [of federal preservation laws] might appear salvageable because they could apply only when Congress has a valid legislative interest. For instance, when the President decides to dispose of presidential records, the Archivist must request advice from certain congressional committees if the 'records may be of special interest to the Congress'."
Despite that narrow ground for preservation of Presidential records afforded by the Justice Department, Tuesday's lawsuit noted, "there is a complete 'absence of any statutory authority' for Defendants' disregard of the PRA's requirements."
"[T]he Executive Branch lacks constitutional authority to nullify Supreme Court decisions by declaring that the Supreme Court simply got it 'wrong'," argued Tuesday's lawsuit before concluding that the Trump Administration's public refusal to comply with the Presidential Records Act is "blatantly lawless".
Plaintiff's then argued that before any administration can unilaterally alter federal law, it must also comply with procedures detailed in the Administrative Procedures Act and that the Executive Branch does not retain the authority to "say what the law is" citing the Supreme Court's decision in Marbury v. Madison.
The non-profit organization then asked the courts to stop the Trump Administration from relying on the Justice Department opinion, comply with the Presidential Records Act, and personally enjoin President Trump "from retaining, destroying, disposing, or otherwise handling Presidential records in a manner not in accordance with the PRA, and to turn over all Presidential records in his actual or constructive possession to NARA as required by the PRA."
"Since Watergate, Congress has made clear that presidential records belong to the American people — not to any one president," argued Executive Director of American Oversight Chioma Chukwu. "The DOJ is now pushing a sweeping view of presidential power that would hand control of those records to the White House — a position the Supreme Court has already rejected. The White House does not get to decide what is preserved, what is hidden, or what is destroyed. The law sets an independent process, followed by every administration for nearly half a century, to safeguard public access. If that framework is cast aside, it puts critical records at risk of being controlled, concealed, or even destroyed before the public ever has a chance to see them."
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