Jack chats with Marty Lederman, professor at Georgetown University Law Center and former deputy assistant attorney general in the Office of Legal Counsel, about a recent OLC opinion declaring the Presidential Records Act unconstitutional. They examine what is at stake, the statute’s history, and the constitutional arguments behind the claim. They also discuss a lawsuit challenging the opinion and the hurdles it faces in getting to the merits.
Thumbnail: Classified intelligence material found during the FBI search of Mar-a-Lago on August 30, 2022. (Department of Justice.)
This is an edited transcript of an episode of “Executive Functions Chat.” You can listen to the full conversation by following or subscribing to the show on Substack, Apple, Spotify, or wherever you get your podcasts.
Jack Goldsmith: Today, I’m chatting with Professor Marty Lederman of Georgetown Law School, who is a former deputy assistant attorney general in the Office of Legal Counsel in the Biden administration. And we’re going to talk about the constitutionality of the Presidential Records Act.
The Presidential Records Act basically says it gives the United States ownership, possession, and control of presidential records. That’s what the statute says. And then it makes the president responsible for managing and preserving those records in office. It transfers custody and ownership—well, I guess just custody—to the National Archives once the president leaves office, and then it governs access to those presidential records thereafter.
And the reason we’re talking about this is because, on April 1st, the Office of Legal Counsel, where Marty and I both worked in different administrations, issued an opinion that said that the Presidential Records Act is unconstitutional for two independent but interlocking reasons—and that’s a quote from OLC. First, OLC said that it exceeds Congress’s enumerated and implied powers. And second, OLC said that the PRA, the Presidential Records Act, aggrandizes the legislative branch at the expense of the constitutional independence and autonomy of the executive.
Okay, Marty, we’re going to talk about these legal arguments, but let’s start off—if you could just—what’s at stake here? Why is this law important? And what’s at stake with whether it’s constitutional or not?
Marty Lederman: Yeah, so I’ll give a quick sort of historical background, which the OLC opinion tracks as well. So, from the beginning of the Republic until 1934, there weren’t a lot of records created by the president or the folks right around the president, but there were some. And Congress effectively allowed presidents to take those records with them when they left office.
And that, over time, was understood to be a congressional acquiescence in effectively transferring the property of those records to the president, to control the way he wished to do so after leaving office. And presidents treated it in various different ways. They made a lot of those records public, and some they didn’t.
In 1934, Franklin Roosevelt—so, there weren’t a lot of records, and there wasn’t really a repository within the federal government to hold them anyway, so it wasn’t like there was another option—in 1934, Roosevelt encourages and eventually signs the law creating the National Archives. And he also takes great pride in saying, I’m also going to donate all of my papers to the National Archives so that the people and the government can have access to them for historical reasons.
So, from 1934 until 1974, there is a place to store them. And every president between Roosevelt and LBJ, generally speaking, made all of their papers available and gave them to the archives, under certain terms and conditions, but generally speaking, to allow the public and the government to have access to them within certain parameters.
After President Nixon resigns, some of his tapes and other, you know, incriminating documents have obviously already been made public at that point—that’s why he resigns. Ford pardons him. And he says, well, the rest of these tapes in particular, and documents, belong to me, and I’m not going to follow in the footsteps of my predecessors. I want to take them and keep them and not give them to the archives.
You know, and this happens right in the wake of the greatest scandal of, you know, the post–Second World War era. And so that obviously engenders a lot of pushback from Congress and the executive branch. And, you know, President Ford encouraged and signed a bill that applied only to Nixon’s records. And it effectively—it did not transfer the property, interestingly enough. It actually gave him just compensation, but it required him to turn over those records to the archivists in the archives for the preservation of historical understanding and the public’s understanding, and the ability of future presidents to understand what Nixon had done, and Congresses and the courts.
And we’ll talk a little bit more about that—the various different actors who are able to get access and what the purposes are. So it’s a Nixon-specific statute that is then challenged by Nixon on about six or seven different grounds—constitutional grounds. And that gets up to the Supreme Court, and the Court rules seven to two against Nixon on every one of his claims. He had actually dropped one or two of them by the time the merits are there, but it rules against him on all of the claims, including, most importantly, a claim that this impermissibly impinges upon the ability of the President to perform his functions by creating a chilling effect going forward.
Or you write that presidents—if Congress were to do this to other presidents—they would know that their conversations are subject to eventual public disclosure or disclosure to their successors or to Congress, and that will inhibit presidents from doing the job the way it ought to be done. And the Court rejects that—what I’ll call the separation-of-powers argument—pretty decisively, and actually articulates a test, a very liberal test, pro-congressional test, for assessing that kind of constitutional claim: one that a federal statute impinges upon the President in a way that will unduly restrict the operation of his constitutional duties.
And so it’s a pretty determined—it’s a pretty strong opinion, supported by President Ford, who signed the bill, and by President Carter, who was the president at the time of the litigation.
Right after that decision, Jack, I think it’s important to note—and we’ll talk a little bit more about this coming forward—OLC nominally tries to distinguish this case, called Nixon versus Administrator, famously, tries to distinguish it on the ground that it was a Nixon-specific statute and it was in the wake of Watergate, and it was a sort of a one-off kind of thing.
The irony was many of Nixon’s claims—and the ones that caused some of the justices a little bit of angst—were that this was impermissible because it was limited to Nixon. It was a class-of-one statute that seemed—he raised a bill of attainder argument that got the most attention from the Court, an equal protection argument that he dropped before it got to the Court, and that sort of thing.
But Congress, after this decision, decides, well, you know what, that’s right—it shouldn’t be Nixon-specific. We don’t want this to happen again. And so we’re going to pass a bill that, with President Carter’s approval, starting in 1981, will make these basic rules applicable to every future president.
With one big change: this new bill—and the one at issue here, the Presidential Records Act—actually declares, as a matter of statutory law, we are now—this will now continue to be government property, not personal property. And then it subjects all of these presidential records to a series of regulations, which we can discuss.
I’ll stop here for a second. And that’s—and OLC at that time testified that this was plainly constitutional, and every president for almost a half a century has treated it as constitutional and complied with this statute.
I haven’t answered your question about what the implication is.
So you didn’t answer my question—what’s at stake here—but that’s okay. You raised a lot of things. So let’s just talk about some of those.
So I think that history is fair, except for one thing. I mean, wasn’t— you said that Congress, before the Nixon statute, you said that Congress had allowed presidents to do certain things. But really, wasn’t Congress mostly silent? And didn’t presidents actually claim—make various claims of ownership over their papers before Nixon?
I’m not sure there were ever any legal disputes about it. When Attorney General Saxbe actually issued an opinion when Nixon wanted—when Nixon made this assertion that he could just take these documents and never share them again. And Saxbe was asked, as Attorney General, is this government property or is it presidential property?
And his opinion basically said that Congress had silently—ordinarily, of course, you and I, Jack, the documents we created when we were government employees are government property, right? They were done—we were paid by the government, we used government facilities, it was done in our official capacity. All other actors within the government, of course, it’s government property.
And Saxbe basically argued that there had been an implicit acceptance by Congress over the years, without any specification, that it was okay for presidents to treat this as their own.
But I thought that the D.C. Circuit in the Nixon case held that they were his private records, and that the statute—well, it may have been valid—constituted a taking, and that he warranted compensation. And as I recall—I haven’t gone back to look at it—I think that case had a list of all of the prior presidents.
You’re talking about the Nixon case? The Nixon case in the ’70s.
Yeah. Sorry if I wasn’t clear about this.
Didn’t they assume or claim that it was Nixon’s property and that he was—yes, absolutely—the person that could regulate this, but that it was a taking, and that was because there had been no prior statute that had actually regulated this, and he had assumed?
Yes. So —
I don’t actually think this affects the legality of what happened.
No, no, it’s actually—Congress agreed. So with respect to the Nixon statute, Congress actually, for the first time, sort of said, we’re going to treat this as private property. The statute itself gave him a right to just compensation.
I think what you’re referring to—it’s been years since I read that decision—is that he ended up collecting, I think, something like $170 million—
Yes, exactly.
—from the government, because Congress actually came in and said, yeah, we’re going to continue this regime in which this is your property, but nevertheless, we’re going to require you to hold it with the archives.
So there was a statute for Nixon, and then there was a Presidential Records Act, and that was important because it prospectively claimed, for all presidents going forward, that this is public property.
And so—and then there was this regime which you just described that we were subject to, and that everybody in the executive branch is subject to, about certain papers being public property and subject to this regime.
So—and I don’t think that history is particularly dispositive one way or the other, but I think it is a little bit contested before the Nixon statute.
In any event, why is it important? We can come back to that. I don’t think it’s actually important, but why is this OLC/White House challenge to the Presidential Records Act, saying they’re not bound by it—why is it important? Is it because they’re going to destroy documents? Is it because they can use Signal now? I mean, why is this an important thing to worry about?
So, one of the first remarkable things about this OLC opinion is that it’s, I guess, kind of like some of the torture opinions in the Bush 43 administration—it’s OLC answering a question, a very broad question about the constitution, the facial constitutionality of a statute, without any indication on the front—on the page—about why they’re answering that question, right?
Ordinarily, OLC, you know, either the President or someone else in the administration comes to OLC and says, we would like to do X—is it lawful for us to do X? And OLC answers that question. Here, the question proposed to OLC by the White House Counsel was: Tell us whether this statute is facially constitutional.
Now, there may have been much more specificity in the internal discussions between the White House and OLC, but the opinion does not explain what turns on this or why the White House is interested in this question. So we’re left to speculate.
And I guess I’ll answer the question by—I guess—I’ll show what the statute does.
In the first instance, it requires both the President and the Vice President, and those working for the President in nine different components of the White House office—not OMB, not USTR, but most of the other White House components—it requires them to retain all government— all presidential records, which are broadly defined, but which exclude purely personal or partisan, you know, electoral records—campaign-like records.
And the President has a pretty wide berth at deciding what counts as that exclusion. But in any event, the President and those around him are required to basically maintain those records during the presidency itself.
And there’s an amendment in recent years that if you use non-governmental resources to create the records—like your personal phone or Signal or some of these new apps where they are not automatically retained—within 20 days, you have to transfer them to a government application or technology that will retain them.
So there’s an affirmative obligation to retain the records while you’re in office. And then, at the end of your term—of the President’s term—the records have to be transferred to NARA, to the archives, for preservation thereafter, subject to all sorts of different rules—which I think we’ll probably get into—about when they become available, to whom, and under what circumstances in the subsequent years after the President’s term.
So here, I think—here’s the answer to your question, what people are suspecting, but we don’t know.
The first concern is that it will allow the President and/or those around him not to abide by the statutory requirements of retaining certain information while he is in office—either tearing them up and throwing them out, or burning them, or putting them on, you know, Signal and letting them be deleted after a few days, or things like that. So that’s number one.
Number two would be not transferring them to NARA at the end of Trump’s term, but taking them to Mar-a-Lago, or doing like he did once before, and doing that in violation of the Presidential Records Act.
And number three would be what NARA does with the presidential records that it does have—both Trump’s and other presidents’ records. Will they turn them over as required by—will they engage in the processes that the statute requires and the disclosure that the statute requires in future years, or even right now, with respect to previous presidents’ records?
So it’s that whole series of different possible implications.
Okay, one more question on this. With regard to—just explain for people who aren’t expert on how the executive branch works—why is this important? Why is it important to retain presidential records? Why do we have this statute?
What is the danger of senior executive branch officials communicating on Signal or destroying records, putting them in a burn bag—which might be happening anyway, very hard to enforce in certain corners? Is it for history’s sake? Is it for accountability’s sake? What is the claim that it is important this statute exist and be abided by?
So I think the statute itself, and the legislative history behind it, and OLC’s testimony about it, and the Supreme Court’s decision in the Nixon case, all articulate what you could say are four different purposes for the retention and the ultimate disclosure.
Perhaps the most important one is, you say, just so the nation can understand its history and the way its government has worked, right? That the people—you know, it’s mentioned historians—but the idea is that people who study American government can explain to the world and to the governed how their government has acted, you know, for all the reasons we care about history, right?
It’s sort of obvious, and the Supreme Court states that right up front as the principal virtue of this statute, right, is to preserve the Republic’s history. It would be a little bit odd not to preserve them, you know—to hide what the government has done from the eyes of the public for centuries to come.
And then all three branches of the government itself have an interest in the preservation, which is reflected in the so-called special access provisions of the Act.
So, most importantly, the next president—and the one after him, and the one after her, and so on and so on—might have a great need to know what their predecessors have done in terms of negotiations with foreign countries, in terms of legislative strategy, all sorts of reasons.
I mean, Jack, we’ve worked in government. Of course, we’re constantly referring to records of what our offices have done in the past, right? That’s what you do every 15 minutes. That’s the only way you can do your job properly. So the executive branch has that.
Or, in particular cases, it could be that DOJ has a need for it if it’s investigating certain activities. And that’s what happened during the Biden administration, when DOJ was investigating Trump’s taking documents to Mar-a-Lago. The FBI had an investigation, and they asked NARA for those documents so that they could investigate what the former president had done. So there might be law enforcement reasons as well.
So the public—you know, public/history—and the executive, I think, are the two most important, but there are two others as well.
Congress might want to see some of the documents and have a need for them. And so, for instance, in this Congress, Representative Comer has requested from the archives—and the archives has given Comer, like my understanding is, enormous numbers of Biden presidential records—for his investigation of the autopen controversy and all manner of other things, for congressional oversight and consideration of future legislation and what have you.
And then the judiciary—like in the Nixon tapes case—you might have criminal or civil cases in which there’s a grand jury subpoena or a judicial subpoena for presidential records, and this statute also allows that.
So it’s the people and history, it’s the executive, it’s Congress, and it’s the judiciary—all of which have needs for these things.
And I think you also touched on probably one of the big motivations, which is the whole Mar-a-Lago documents matter, which is clearly still a thorn in the president’s side. He’s still upset about the Presidential Records Act—it was implicated in that—and he would like to unwind anything that could suggest that what he did was unlawful. He would like to unwind it and show it was illegitimate.
I think, at some level, they may want to be destroying documents now and manipulating the historical record, but I think that’s also—
It could be. There is this reference—I think you and I discussed briefly—in the OLC opinion that you could extrapolate from it and say, oh, and by the way, one implication of our holding is that this whole criminal investigation for violations of this Act was itself unconstitutional or invalid, because the statute is.
I mean, I think that was the driver of the whole thing.
Okay, let’s get to the constitutional arguments. OLC said, first, that the Presidential Records Act exceeds Congress’s enumerated and implied powers—i.e., there is no basis in Article I for Congress to enact this statute. What do you think about that?
So, Jack, I haven’t run into anyone from any political persuasion or any administration who thinks that these arguments—which take up the bulk of the OLC opinion—have any plausibility at all.
But explain why.
So, I will explain. It’s both what’s there and, most importantly, what’s not there. So, very briefly on what’s there—and we can go into this in greater detail, but I’m not sure it matters much other than as a reflection of OLC—OLC goes on for pages and pages about congressional oversight authority, for instance, which is really almost neither here nor there. It also takes extraordinarily—
Explain why it’s neither here nor there. OLC spends a lot of time talking about Congress’s powers of oversight, and this is important for the Supreme Court decision in Mazars and the like that it relies on. So why does it use that frame, and what’s wrong with using that?
You got me. It’s a weird frame to use.
But why? Why is it a weird frame to use?
Because those cases—Mazars and other oversight cases—are cases about when a congressional committee is seeking information with respect to its oversight authority or its impeachment authority from the executive, and it’s a particular request for particular documents.
And the Court has come up with various different doctrines related to when and under what circumstances presidents can resist, or executive branch officials—or private parties in Mazars—can resist those sorts of claims for congressional oversight. And that raises a whole slew of questions about: Is Congress’s interest in this particular investigation valid? Does it outweigh the needs of the president? Are there privilege questions at play?
It’s very case-specific, very document-specific, very specific to a particular congressional investigation. And those cases and those doctrines just have never been considered with respect to a facial challenge to a statute—which, yes, as I just mentioned, sometimes, like with Comer, Congress might use the PRA for oversight purposes—but that’s hardly the most important application of this statute.
Okay, so I agree with you. It’s not obvious why the constitutionality of a piece of legislation is viewed as an example of oversight, which we tend to think is more contextual and specific.
So what is the right lens for thinking about this? They say that Congress has no Article I authority to regulate. So what is the strongest basis of Article I authority?
So I actually think there are at least three fonts of obvious congressional power here, only one of which is in Article I, by the way.
And the one that’s in Article I is just the Necessary and Proper Clause. It’s necessary and proper for Congress to carry into execution the laws that it has created. Congress creates—except for the President and the Vice President—all of the positions within the Office of the White House, right, the Executive Office of the President.
It appropriates funds for all of the materials—other than a private phone—to be making these sorts of records. It basically creates the structure of the executive branch, but for the president. And obviously, Congress enacts laws all the time that regulate the funding and operations and limitations of what folks in the Executive Office of the President, like the agencies, can do.
That’s just ordinary, everyday Necessary and Proper Clause legislation with respect to both congressional money and congressionally created positions and functions. That’s number one.
But two others are sort of even more prominent. One is the one the Supreme Court mentioned. Now, I will say here—I said Nixon made six or seven different constitutional arguments—it’s noteworthy that he did not argue—none of them was that Congress lacked the affirmative authority to enact his statute, right?
Like, this argument was so disfavored that even Nixon, who was throwing everything in the kitchen sink in the case, did not make it.
So one of them is the one the Court held was sort of the basis—and it’s kind of an inherent power of government to preserve the history of its operations, right? Imagine if you were writing a constitution for anything—for any government, a nation, a state, a city, a private institution—of course your lawmaking body would be—it would be assumed—you’d have the power to preserve the records of your own operations.
Like, who wouldn’t put that in the Constitution? So it’s that inherent power to preserve our nation’s history, which is what the Supreme Court referred to, among other things, in the Nixon case.
So there’s those two. And then the one that’s most prominently missing—which isn’t in Article I, but in Article IV—is Congress has the power to enact regulations with respect to government property—property of the United States—the Property Clause, which the OLC opinion doesn’t even mention.
It was mentioned in the lower court decisions in the Nixon case, and it was invoked by OLC when this statute was being contemplated. It is completely inexplicable why OLC—it didn’t—it either didn’t occur to anyone in OLC to think about the Property Clause; they don’t challenge that it’s government property, interestingly; they don’t mention it either.
Either someone did mention it to them, that they ought to address that question, or they didn’t look at the briefs in the old cases, and they didn’t talk to anyone who would have told them. I think it’s fair to say, Jack, that virtually anyone—any career lawyers in OLC or at the archives—would have told them in five minutes, what are you talking about? There’s the Property Clause.
I agree with you. They should have definitely addressed the Property Clause, especially since the government has relied on the Property Clause in very closely analogous contexts.
Does it matter—the Property Clause in Article IV—it comes in the context of talking about territories. It does say “property of the territories.” And what is the exact language? Congress shall have the power to dispose of and make all needful rules and regulations respecting the territory or other property belonging to the United States.
So do you think, in the Property Clause, they were—when they were focused on territories—they were just thinking about all government property, and that’s where they put it instead of Article I?
I don’t know about instead of Article I, but in addition to Article I. I think even if there weren’t a Property Clause, I think there’s a very strong argument.
I agree, but I’m just trying to figure out the relevance of the Property Clause. Obviously, the Necessary and Proper Clause in Article I applies to all government powers, so it doesn’t matter for that purpose that the Property Clause is in Article IV. I’m just wondering whether the Property Clause had this type of legislation in mind. I’m not even talking about it as an original matter. I’m just talking about whether they just focused on territories here—this is Article IV that is about horizontal sovereignty.
It clearly includes chattels and real property and buildings and materials and the stapler. You and I couldn’t take staplers home from the office because it was government property.
Here, I think it’s sufficient just to quote OLC—this is Larry Hammond of OLC testifying in 1978: “It is well established that the work product of government employees prepared at the direction of their employer or in the course of their duties is government property. Should Congress choose to extend this principle to cover records prepared or received by the president in the course of his duties, no substantial problems would, in our view, be raised.”
And then they did mention the Property Clause there. But I’m not sure exactly what your question is.
I’m just trying, for the general reader, to point out—I think that the Property Clause is probably deeply relevant here, and I think it has been treated as deeply relevant for a long time in the government. And it is remarkable that OLC didn’t even mention it.
I’m just pointing out that this is in Article IV, in a context that seems to be something else, and what you’re saying is basically this hasn’t mattered to the understanding of the Property Clause in the past.
I’ve never studied—quite honestly, I’ve never had any occasion to study—the full scope of the Property Clause. I do know that in the preliminary injunction motion that was recently filed in a case that we’ll talk about in a few minutes, the plaintiffs do have a little riff on the scope of the Property Clause. I haven’t really carefully looked at it.
Okay. What about the second argument, Marty? The second argument is that the Presidential Records Act aggrandizes the legislative branch at the expense of the constitutional independence and autonomy of the executive.
Yeah. So, just to put that in the context of this opinion—so what’s kind of shocking about the opinion: There are about 40 pages of analysis. The first 25 to 30 are on this—are just this sort of diversion about the lack of affirmative authority by Congress and oversight authorities and all this stuff, without talking about some of the most important authorities.
And then only then do you get to sort of this backup argument, they say it’s in conjunction with, which is effectively a separation-of-powers argument. It amounts to an argument that this statute unduly impinges upon or chills the conduct of the President’s activities in ways that will prevent him from performing his constitutional and statutory duties.
And that is the first argument that the Court addressed in the Nixon v. Administrator case, right? So perhaps the reason they relegated this to the back end of the opinion is they were going to have to deal with the Supreme Court case directly on point—and something they only mention in a footnote—with OLC testimony about this Act that addressed this question and rejected this constitutional objection, said that it was meritless, especially after the Supreme Court opinion.
So they use the word “aggrandizement.” I don’t think—it’s not necessary for your viewers—but that’s the wrong term. The aggrandizement question is just when Congress inserts itself into executive functions. There’s nothing like that in the statute here. So OLC is misusing that whole concept.
What they’re thinking about is—I think the argument is that the Nixon v. Administrator of General Services—that case engaged in a style of separation-of-powers analysis that the Supreme Court is not inclined to address now.
So the OLC seemed to be saying—I think they refer to it as the ancien régime of separation of powers—and there was a Brennan opinion, there was a kind of balancing test that the Court doesn’t really go in for now.
So, I mean, I have a response to that, but I’m wondering what your response to that is. Is that relevant here?
Well, I’d like to hear your response. You’re right about what their argument is. So they spend a page or so saying that Nixon’s distinguishable.
Actually, this is an easier case than Nixon in two ways. Here, the documents are government property—they weren’t in Nixon. And there, the way that OLC purports to distinguish Nixon is that that was only with respect to one president, not all presidents, and therefore it was more acceptable. Actually, that was the constitutional problem that was most acute to the justices there. This is better because it’s not a class of one.
So they don’t really make much of an effort to say it’s distinguishable. But what they say is basically—they use the word “wrong.” They say the Supreme Court was wrong. It’s the ancien régime, right? It basically—it’s a Bill Brennan opinion, therefore it must be wrong—is the not-so-subtle subtext there.
This is from a different era. We are just—it’s just a sort of—I don’t know if I’ve ever seen this in an OLC opinion, Jack. I’m wondering if you know of another example where OLC is saying even if there’s a Supreme Court precedent directly on point—and OLC has testified that it makes this an easy question—we are hereby not going to follow that because we think the Supreme Court got it wrong.
So I don’t think they quite said that. I agree —
They literally say it’s wrong.
I know they say it’s wrong, but they also distinguish it.
I’m saying the distinguishing is pathetic.
But they’re not—it’s a different statute, it was a different structure. It didn’t rule on the constitutional question of Congress’s power because they just assumed it.
No, on this one, though, on the intrusion into the president’s functioning—the Court did address that directly. That was the principal claim made there. And when OLC gets around to explaining why—
I agree—so here’s why I think, they didn’t really get into this, but what is the separation-of-powers analysis they would like? It’s a more formalistic one. But I don’t really understand how that helps them, because to me, if it’s a formalistic analysis, you start with Article I power.
And I think, for all the reasons you explained—especially the Property Clause, but the others as well, maybe not the inherent powers argument today, although that’s been an important argument in this context—I think Congress clearly has Article I power here to define and regulate government property.
Article IV. And Article I, yeah.
Article IV, but with the Necessary and Proper Clause on top of it.
And then the question is, well, you know, does the president have some exclusive power vis-à-vis this? And here’s what I don’t really understand. The president is claiming—it’s an Article II argument, something about the office of the president—but they’re relying on an Article II argument to say that the president has a private—in a way, kind of private—control and can do what the president wants with these documents.
I don’t see how you get an exclusive—I don’t even know where it would come from—the exclusive Article II power to dispose of this property as the president wishes. That’s the part that I think a formalistic analysis—
I’m going to make an analogy in a minute that’ll be a bit provocative, just because I just taught it to my separation-of-powers students, but let me hold that for a second.
I think I agree with you—I don’t see what’s there. I think it’s important for your viewers to understand that this statute bends over backwards in several ways to preserve presidential prerogatives and to ensure that there is not an undue burden on the president’s functioning.
It allows not only the current president at the time of a dispute, but even a former president, to raise an executive privilege claim, to have that adjudicated by the courts if it gets to that point, right? To get to the courts—it gives the former presidents a lot of control to make it so that, for 12 years, there’s basically not very much access to this. There’s no judicial review of archives decisions to withhold documents until the 12 years is up.
This is an extremely solicitous-of-the-president statute, which is not surprising because Carter was signing the statute, right? The president was approving this, so it’s got all these protections built in.
So then the obvious question is, well, how does this really make the president’s performance of his or her duties any more difficult? And the one concrete example they give—it’s like, I don’t know if I would have ever had the guts to write this—is it takes up too much time of the White House Counsel’s Office to advise the president on how to comply with the PRA.
I hope I don’t have to explain why that’s not a very good constitutional argument.
Explain why.
Well, for one thing, the Office of White House Counsel is created and appropriated by Congress for the purpose of advising the president how to comply with the law. To say that that’s diverting them from their functions is kind of a non sequitur. That is the purpose of that office.
And, you know, Congress doesn’t have to create a White House Counsel at all, right? There wasn’t much of a White House Counsel’s Office until after Watergate. And I just don’t even see how one would constitutionalize that argument.
And that can’t be what’s going on, right? They want to be able to destroy these documents. The broader claim is that even non-privileged communications—because remember, the privileged communications are going to remain secret—but non-privileged communications, the knowledge that they will come to light 12 years later or something like that, or be available to Congress or the FBI or a judicial subpoena in a shorter amount of time, will so chill the operations of the executive branch that they won’t be able to do their job properly.
And, you know, the plaintiffs’ main response to that is, well, it hasn’t chilled. The presidency has been working just fine for 50 years, thank you very much. The statute has not really had much of a detrimental impact at all.
Do you think—but do you agree with me that they don’t really explain how it is that Article II can create an exclusive power in the executive branch for the president to do what he wants with the document?
No, they don’t make either a legal argument to that effect or even one that sort of resonates in terms of the facts. I think, you know, if you press them with truth serum, they would say something like just the ordinary human thing, right?
Which is, a lot of people these days do things by phone or try not to create records, right? If you’re going to be more candid, more forthright, if you don’t have to write something down for, you know, history’s preservation, right? If you know no one will ever know what was going on, you will be more candid, even apart from executive privilege claims.
And I guess, in some respects, that’s true, right? That’s the way we are—when we have a pretty certain idea that someone we’re speaking to will never repeat it elsewhere, we tend to be a little bit more candid than if we know that it might come out 12 years later.
So I think that the strongest practical argument—it’s not really an argument, but a practical line in the opinion, and let me flesh this out before you comment—is when it says, well, if Congress can regulate presidential records, they could regulate Supreme Court records. And they’re going to say that district court records.
And I actually think that’s right. Congress could regulate records of the federal judiciary, including the Supreme Court. I think it would have to be done differently to take into account the very different structure of Article II and the ways in which administrations turn over, with judges retiring while their colleagues are still in the Court and the like.
But I have no doubt that Congress could enact a constitutional Federal Judiciary Records Act of some scope, but I do think this is going to give judges pause. What do you think about that?
I agree with that. It’s a common move in constitutional adjudication that might get up to the Supreme Court to say, well, what if this were you? Sam Alito’s out there publicly having said Congress can’t regulate the Supreme Court at all—that’s clearly not right. Congress has regulated the Supreme Court a good deal over the years.
Well, it can determine how many people are on the Court.
Yeah, when its term shall be, in a million different ways. Yes, it could require this. You might say there are questions about whether the judicial power—as you know, there’s a handful of cases that have construed those pretty vague words to impose some sort of baseline thing that Congress cannot regulate.
The judicial power includes the power to issue a final judgment that can’t be reopened by the legislature. I suppose someone might make an argument that having complete control over records infinitely into the future is part of what it means to be exercising the judicial power. I don’t know what that argument would look like.
I think it’s kind of tough. I mean, you’re really getting into whether the institution—the branch’s control over its deliberations—is something it is the master of. And once you acknowledge that the executive branch can deliberate however it wants, but it has to preserve a record of those deliberations when a record was created, I think that the same basic argument has to apply to Article III.
Although, again, I think there would have to be different kinds of accommodations. I don’t see how you could craft an argument—maybe just my lack of imagination—based on the judicial power to distinguish it from the executive power in terms of Congress’s ability to—
I agree, but you can imagine—and we’ll talk in a minute about whether DOJ will defend the merits of the OLC opinion—but you can imagine that, if they do, and it’s getting up to the Supreme Court, yeah, you start from really provocative hypotheticals.
Could Congress pass a law requiring that the justices videotape their Friday conferences so that, 40 years later, people can understand what their deliberations were? There are some who think maybe Congress can’t even require videotaping of oral arguments, that that’s something off-limits to Congress. I don’t think that’s a very good argument, but the Supreme Court would not take well to that statute on any of that.
This is why I mentioned it. I think this is—set aside the fancy doctrinal arguments—this is going to be the main intuitive argument that’s going to give many members of the judiciary, and I think members of the Supreme Court, pause in trying to understand how—well, you say that it doesn’t impact deliberations and it doesn’t affect the operation of Article II, but boy, we can imagine how it would impact us, so maybe we need to—
Obviously, the executive branch is just so very differently structured and organized, with a very different function from the judiciary, but I still think it’s going to be, if not on the surface, in the background.
No doubt, no doubt about it.
So let’s talk about—there’s a lawsuit, and it’s brought by scholars’ associations that are seeking a variety of injunctions and mandamus and declarations of unconstitutionality of various things related to the OLC opinion and the follow-up on it.
I mean, do you have any general thoughts about the lawsuit? The obvious questions are that, even if they have a powerful case on the merits—and I think that they do—the obvious questions are: do they have a right to sue, and especially, is there standing?
Yep, I think that’s exactly right. So just a little background for your readers—and maybe we’ll know more, maybe we can do a follow-up in the next couple of weeks as this goes on.
So the case was originally assigned to Judge Howell in the District of Columbia. It’s now been given to Judge John Bates, who’s a very, very serious—Judge Howell is as well—a very serious and scholarly and thoughtful judge who’s written on separation-of-powers cases before.
Interestingly enough, I don’t have any doubt that Judge Bates and the appellate courts would rule for the plaintiffs on the merits if the merits are eventually reached. I don’t think this is a hard case at all.
Okay, we just spent a long time talking about the merits. Let’s talk about getting to the merits.
Yes—and getting to the merits. So just to tee it up: there’s a motion for a preliminary injunction that is pending. The plaintiffs asked for expedited consideration; the government opposed that.
The plaintiffs said to the government, we’re willing to give you more time to write your brief if you will just agree that you won’t violate the Presidential Records Act while the PI is being litigated. The government refused to do that. So it sort of definitely leads to the suggestion that they are currently not complying with the statute in one manner or another—we don’t know how—or more than one. So Judge Bates ruled for the plaintiffs.
They pretty much said they weren’t complying with it, as I read. They sent instructions to have people continue to do things with records that were not as broad as the Presidential Records Act, which makes me—
It seems that way. But it’s going to be a little bit vague to Judge Bates exactly how—what are they doing with this OLC opinion, and how much are they doing that’s irreparable, that cannot be repaired?
I’ll ask that question.
So anyway, he’s expedited the briefing. The government’s brief is due Tuesday—so in four days. It’ll be very interesting to see whether they limit their arguments just to the standing/justiciability arguments or reach the merits. And the hearing is, I believe, on May 5th for the PI.
You said a second ago—and I still want to get your views, to the extent you can offer them, on justiciability—but you said a second ago you weren’t even sure the government was going to. I think the government—I don’t have any doubt that the government’s going to be all-in in defense of this position.
The position the president wants is the position the White House wants. There’s an OLC opinion on it. I don’t see why—I agree it’s going to be hard to square with some past representations, but I don’t see—But there is some slippage in some of—
All right. You may be right. I think this is a great challenge for the Civil Division and the Office of the Solicitor General, because I just think the arguments here are extraordinarily weak and would effectively require a district court judge or a court of appeals to disregard a governing Supreme Court precedent and OLC testimony from the ’70s.
Yeah, I don’t think OLC testimony won’t cut much weight.
No, but it’s reflective of how easy the question was, right? So one thing that’s interesting to me as a strategic matter is that the plaintiffs have asked for injunctive relief against several different defendants in the executive branch. One is the archives—that they should comply, and therefore they shouldn’t refuse to disclose something on the ground that this is unconstitutional.
Another is against all the sort of other officials within the Executive Office of the President—that they should comply with their retention requirements. Obviously, the requirements that take place on January 20th, 2029—those are three years away, right? So those requirements are three years away.
And they’ve made one claim—they’ve actually asked the court to set aside the OLC opinion, which I kind of think is not a thing.
Yeah, that is a—when I read that, I thought—
That was overreaching. A declaration that it’s wrong is all you need. There’s no such thing as setting aside an opinion.
And also, what is—they talked about final agency action here under the APA. What is that?
Well, that’s as to NARA. NARA is the only entity that’s—well, yes, there’s a claim against the attorney general about the OLC opinion. I don’t think that’s going to have any legs.
What is the final agency action by NARA? It would be not complying—systematically not complying with its obligation.
Anyway, one thing that’s interestingly not in the case is that they have not asked for any injunctive relief against President Trump in his official capacity. They are asking to enjoin him, once he becomes a private citizen again at the end of his term, from taking or destroying the documents.
But they are not seeking an injunction against the president’s own destruction of or failure to preserve documents that he’s involved in. Now, I know why they’re doing that, because, as you and I know, there’s this old Civil War–era case, Mississippi v. Johnson, that Justice Scalia was very fond of, that suggests that the judiciary doesn’t have the power to enjoin the president directly.
And I think there are a lot of justices on the Supreme Court—and there are justices—but I think it’s a very, very bad, incorrect reading of that case and of the Constitution. I think there are historical examples of presidents who have been enjoined, but I think that’s the reason the plaintiffs are not seeking an injunction against Trump.
I think that’s prudent, actually.
And it might be prudent. Okay, so what are the problems? The problems are potentially cause of action—although there are a bunch of cases where the Court has said, Armstrong, Free Enterprise Fund, that there’s an implied equitable cause of action to seek an injunction against executive branch officials for not complying with statutes.
The really hard question for Judge Bates, I think, is going to be standing. We haven’t seen the government’s brief yet. And I think it’ll be something like the following: yes, these organizations—the American Historical Association, American Oversight—they make requests under the PRA for enormous numbers of presidential records all the time. That’s what they’re in the business of doing.
And if all the records were being destroyed, you could be pretty sure that they would be injured at some point down the line. And the only way to prevent that injury is to act now, to not allow the destruction.
But right now, it’s a black box about which records aren’t being retained, which ones are being destroyed. Do we know for sure that anything they would ever seek from NARA would be destroyed? We don’t know for sure. And therefore, it’s kind of a speculation question.
It’s like a Clapper kind of thing—it sounds very Clapper-ish, but without the national security overhang of Clapper.
So on the one hand, this seems rather speculative, because it’s hard to identify particular documents that they will not have access to that they otherwise would have. But on the other hand, if you don’t issue an injunction now, anything that’s destroyed now—there’s no way of getting that back.
So it’s kind of a—I don’t know that it’s controlled by any particular—it’s got a weird mix of standing issues, I think.
That’s a problem—the Clapper problem, we’ll call it. It’s not exactly like Clapper, but it’s a cousin, maybe. Is that going to be a problem for any plaintiff, I think? Or is there—or can you imagine a plaintiff that would get around the Clapper argument?
It’s very easy to imagine a plaintiff, right? So if the following took place, right: If NARA has thousands of requests right now for presidential records, right—including from the first Trump administration, because five years just passed since the end of the first Trump administration—they’re processing them. They always take a long time. They’re always late on processing. They have a huge volume of things.
If they were to ever say, no, we would give you this document, but now that it’s unconstitutional, we don’t have to, that would obviously give someone standing. But I don’t think they’re going to do that anytime soon, if I had to predict.
Like, I’m not sure what they’re doing over at NARA, or if they’ve even been given instructions on what to do with pending requests, right? And so that would create standing, but that might not occur for six months or 18 months—who knows? And in the meantime, a lot of damage could have been done.
So that’s the problem. You get this case—the Court has said many times, including in Clapper, that even in a case where no one would have standing, that doesn’t mean you have to have adjudication. But the Court cares about whether the government would be able to violate a statute without anyone having standing.
And so I think this is a really tough question going forward. If I were Judge Bates, I sure would want to know—unlike in Clapper, where you couldn’t kind of publicly find out what the NSA was doing—here, there’s no national security reason you can’t find out.
Not yet.
Not yet. It’s all national security—
It will be raised. That’s coming, I bet.
Oh, even like, just tell us what you’re doing with presidential records? There’s no privilege claim or national security.
This is an administration that has made national security claims wildly, so I think it’s coming, but—
Okay, if I were Judge Bates, I would think he would be inclined to see whether there’s a way—I don’t, I haven’t thought about this very hard—to insist that the government reveal something about how it’s implementing the OLC opinion.
Do you think it can do that? Rules on standing as a condition of—
No, no—as a—because that will determine standing.
Yeah, so he has to connect those things.
Yeah, and I haven’t thought that through, Jack, quite honestly.
No, but I think that’s right.
What do you think? Do you think the district judge has that power, kind of?
I think if there’s a powerful standing argument, there will be a claim that they can’t get to the merits, and they would construe that question as a merits question. So I think it’s prudent, if he can, to tie that question into trying to understand whether there’s standing.
If I’m a district court judge, that’s what I would do.
Yeah, I think most of the action is going to be on this question, at least in the near term.
All right—anything else?
I don’t think so. Did we cover most of what you wanted to cover?
Everything on my list. Thanks so much, Marty.
Thank you, Jack. It’s always a pleasure and an honor to talk to you about these things. I hope it’s interesting to your viewers.
It will be.
The Presidential Records Act!
I know—If they stay for the whole hour. Thanks very much.
Take care.
