A New Low? Presidential Records and the Role of OLC
An extraordinary constitutional claim from OLC threatens decades of practice—and now faces the courts.
On May 13 (tomorrow), Judge John D. Bates will hold a consolidated argument in two cases filed to ensure the White House is complying with the Presidential Records Act (PRA). The cases were filed by several interested organizations—including the American Historical Association (AHA), Citizens for Responsibility and Ethics in Washington (CREW), and American Oversight—in April shortly after the Office of Legal Counsel (OLC) released a shocking opinion concluding that the PRA, a bipartisan statute of almost a half century vintage, is unconstitutional in its “entirety.” After purporting to engage in rigorous constitutional analysis, the 52-page opinion advises the counsel to President Trump that “the President need not further comply with [the PRA’s] dictates.”
The opinion and its astonishing conclusion render meaningless nearly 50 years of work by employees, officials, lawyers, and, yes, presidents, in the White House, National Archives, Justice Department, and many other places. As the motion filed by the AHA notes, nine components of the Executive Office of the President (EOP) are covered by the PRA, which employ over 842 individuals. The PRA is a comprehensive statutory scheme enacted after the Watergate scandal to protect the historical record and prevent the manipulation or, as Nixon intended, destruction of government records. The PRA emerged from an extensive, nonpartisan study about what should be done to preserve and protect White House records, a study that incorporated extensive constitutional analysis.
No one, to my knowledge, had ever raised any serious constitutional objections to or even concerns about the PRA prior to the release of the OLC opinion. That includes OLC itself, which advised Congress that the PRA was constitutional at the time of its passage and which has on multiple occasions advised the White House, both formally in published opinions and informally and confidentially, on questions related to its application—including during the first Trump administration. Indeed, the Supreme Court considered and rejected many of the arguments raised by OLC and the Justice Department almost 50 years ago in Nixon v. Administrator of General Services. In that case, the Supreme Court rejected Nixon’s constitutional challenge to a presidential records statute that Congress had enacted to preserve Nixon’s records specifically after he had executed an agreement allowing him to destroy records at his discretion.
No surprise, then, that former officials such as Gary Stern, the longtime general counsel to the National Archives and Records Administration (NARA) and perhaps the nation’s leading authority on the PRA, found the OLC opinion “astounding.” He was not the only one. Some of my former colleagues have described it to me as, among other things, “outrageous” and “absurd,” and many on social media and elsewhere asked whether the opinion, released on April 1, was an April Fools
Whatever one thinks about OLC or executive branch lawyering more generally, this opinion stands out for its absurdity. It is, in short, embarrassing
Although I would expect the Justice Department lawyers to try and focus on their arguments that the court should not hear these cases because of various contentions related to its justiciability and the court’s equitable power, I have little doubt that Judge Bates, a highly accomplished and experienced jurist appointed by George W. Bush, will ask about—and be quite skeptical of—the constitutional arguments set forth in the OLC opinion. How far the Justice Department is willing to go to defend them remains to be seen. As described below, the obvious flaws and logical fallacies endemic to the opinion suggest OLC either rushed out an opinion at the whim of the White House without careful research and review or that the analysis in the opinion was purposefully tortured to reach the desired end result. Either scenario casts OLC and the Justice Department more broadly in unfavorable light, at a time when good lawyers are fleeing the Justice Department, and its actions are increasingly seen as motivated purely by the president’s personal agenda.
Incomplete and Deficient Constitutional Analysis
Christopher Fonzone, a former head of OLC and an experienced (and exceptional) executive branch lawyer, has previously published an exhaustive constitutional analysis of the OLC opinion. I would certainly recommend that anyone interested in the opinion take a look at Fonzone’s devastating critique. I will not go into the constitutional analysis quite as deeply as he did, but there are a couple of high-level failures worth highlighting. I would also refer those interested in this topic to the discussion between Jack Goldsmith, former head of OLC during the George W. Bush administration, and Marty Lederman, a former deputy assistant attorney general and attorney-adviser in the office during the Biden and Obama administrations, respectively. All three of these former OLC officials have withering critiques of the opinion.
The Missing Property Clause
Most prominently, the OLC opinion is manifestly incomplete. If I posed the question of the PRA’s constitutionality to my first-year constitutional law students, I would deduct major points from any answer that failed to discuss perhaps the most relevant constitutional clause, the Property Clause. The Property Clause provides Congress the authority to make all “needful rules and regulations” respecting the property of the United States. The PRA establishes a comprehensive scheme of “rules and regulations” regarding the official papers of the United States, created on government property, for purposes of official government business, by individuals elected or appointed to a U.S. government position, and at public expense. These records belong to the United States, and the text of the Constitution appears to explicitly give Congress the power to make these types of decisions about U.S. property. Indeed, the legal memorandum prepared by the National Study Commission on Records and Documents of Federal Officials, whose recommendations led directly to the PRA, began its constitutional analysis with the Property Clause, a fact any diligent researcher should have uncovered (hat tip to David Manners-Weber for this research).
I am not dismissing some more nuanced constitutional questions that arise from relying on the Property Clause. The interpretation and application of the Property Clause to things such as official documents has never been definitively established, and there are some arguments, some of which Goldsmith raised, that the Property Clause, located in Article IV of the Constitution and addressing U.S. territory, should be read in a more limited manner. Most importantly, the Property Clause does not answer the question of what constitutes U.S. “property” or congressional power to make that kind of determination. It simply provides Congress express authority to make rules and regulations about U.S. property. And, unsurprisingly, the recent Justice Department filing picks up these points and makes arguments about why the plain text of the Property Clause does not fully resolve the question of the PRA’s constitutionality.
But the OLC opinion never mentions the Property Clause. Indeed, aside from its discussion of presidents’ actions with respect to their papers prior to Watergate, the opinion never presents an argument, let alone rigorous analysis, of whose property presidential records are or what standards should be used to determine the ownership of various categories of records—let alone how the determination of these facts implicates the Property Clause.
That omission is telling about the quality of OLC’s work. Either OLC failed to recognize the applicability of the Property Clause—suggesting substandard research given its prominence in the commission memo and the fact that the Justice Department itself relied principally on the Property Clause to defend the predecessor statute to the PRA in Nixon v. Administrator. Or the omission represents a deliberate, and inexplicable, decision not to address a central constitutional argument. The briefs filed by the Justice Department both have an argument section entitled “The PRA cannot be justified by any express or implied congressional power,” and that section includes three subsections: (1) the power of inquiry; (2) the necessary and proper clause; and (3) the property clause. The OLC opinion spends 52 pages on the first two. But it never mentions the third.
Indeed, in addressing the Property Clause in the litigation, the Justice Department unwittingly concedes its relevance. The brief uses the president’s exclusive power to pardon to try and illustrate its separation-of-powers argument, stating “Papers and computers at the White House are the property of the United States, but Congress could not forbid the President from using such media to memorialize a pardon.” No one of course contends the PRA does any such thing. But the sentence itself concedes that “papers and computers at the White House are property of the United States.”
The PRA dictates that, when the president uses that paper for a pardon—in whatever way he wishes—he needs to retain it, because it is U.S. property. The PRA does not dictate what the president can write on the paper, who gets to see the paper, or even whether the president must use specific paper (or even an autopen). The PRA affirms that White House paper on which a presidential pardon is written is an official government document and property of the United States, and it prohibits anyone from destroying that official government record. As the acting United States solicitor general and Justice Department wrote almost 50 years ago in its brief to the Supreme Court in Nixon v. Administrator, “Although the Property Clause would not enable Congress to override a legitimate claim of privilege, it establishes authority to legislate with respect to materials in which the United States has an interest.” It is impossible to understand how OLC could write a 52-page opinion on this subject and not mention this clause a single time.
Inventing New Principles of Constitutional Law
Second, and perhaps more striking, the OLC opinion’s analysis of the Necessary and Property Clause is both perfunctory and unmoored from any existing constitutional law. The Necessary and Proper Clause gives Congress the power to “make all laws required to execute … powers vested in the government,” including powers vested in the president or the courts. Famously, Chief Justice John Marshall interpreted this clause broadly over 200 years ago in McCulloch v. Maryland to allow Congress to enact any law that is “appropriate” to carrying out the functions of the government. OLC never mentions or cites this foundational standard from McCulloch. Instead, the opinion rejects the argument that the PRA is an appropriate means of assisting the executive and legislative branches in carrying out their functions in a mere two paragraphs. The legal principle on which the opinion does so, which has drawn ire and ridicule (and everything in between), from constitutional law professors everywhere, is the final sentence of these two paragraphs, which states: “A statute that burdens rather than facilitates the exercise of executive power is not ‘necessary and proper’ to carry that power into execution.”
The Justice Department’s brief reiterates this supposedly foundational separation-of-powers principle. But, tellingly, the only support the brief cites for the principle is the OLC opinion itself. Litigators in the Department of Justice know that an OLC opinion carries significantly less weight than judicial precedent or historical materials, such as the Federalist Papers. If there were any precedential or historical support for this supposedly foundational principle of the Constitution’s separation of powers, the litigators would undoubtedly have cited it. The fact that they cited only the PRA opinion is a tacit admission that OLC invented the principle out of whole cloth.
This newly invented principle is also wrong. Put aside, for a second, the contention that the PRA “burdens” the exercise of executive power. (More on that below.) But even if one accepts that the recordkeeping requirements create work for the White House or that the law itself imposes some constraints on presidents or their advisers, it is Congress that is given the authority in the Constitution to decide whether a particular “burden” or limitation is “appropriate” in the words of McCulloch (subject, importantly, to the president’s veto). Presidents and White House officials and staff have to—or at least are typically thought to have to—comply with innumerable statutes and laws that may constrain them in some way. Indeed, the Supreme Court recognized this exact point in rejecting former President Nixon’s challenge to the predecessor statute to the PRA in Nixon v. Administrator. And, in doing so, the Court was largely just adopting the lead argument made by the Department of Justice in its brief to the Court in 1977, an argument that OLC now directly contradicts in its opinion.
Omitted History and Legislative Interests
The OLC opinion goes into great detail about some, mostly irrelevant, history—such as that of incumbent presidents refusing to turn over information to Congress—and argues at length that Congress lacks a legitimate oversight interest in the PRA. But it omits other history that is equally informative. And its constitutional analysis fails to address other relevant congressional interests. Indeed, in an oversight perhaps reflective of its haste or quality, the opinion contradicts itself on this point, characterizing the PRA as about oversight in its constitutional analysis, but later stating (page 50) in the context of the severability analysis that the statute’s “core purpose” is “ensuring public access to presidential records at the end of an administration."
The OLC opinion depends on the premise that Congress cannot utilize its spending power generally, but must do so in furtherance of its other powers. Put aside for a second the fact that the Supreme Court rejected this cramped understanding of the spending power almost a century ago and instead adopted the Hamiltonian view. Even accepting OLC’s spending power approach on its own terms, OLC omits both history and legislative interests that more than suffice to justify the PRA.
As the Supreme Court made clear in Nixon v. Administrator, Congress, as well as the nation itself, has a number of important interests in a statute such as the PRA. First, Congress undoubtedly has power to collect and preserve materials of historical and national interests. Although the OLC opinion repeatedly emphasizes the historical practice of presidents maintaining control of certain records prior to the PRA, it neglects to mention the numerous times Congress has legislated and spent money in furtherance of preserving the nation’s history, including, for example, by purchasing James Madison’s papers from his widow (resolving an extensive constitutional debate in favor of congressional power to do so), creating the National Archives, establishing the Library of Congress, passing the Federal Records Act, and innumerable other actions.
To claim that Congress lacks any legitimate interest in or legislative power relating to preserving the nation’s history and thus lacks authority to spend money in furtherance of that interest is contradicted by two centuries of history, not to mention every court to have considered the issue. Indeed, that contention is contradicted by OLC itself, which advised Congress in 1978 that it was “clear that it is within the appropriate ambit of Congress’s power to legislate with respect to the preservation of historically valuable papers of the Chief Executive.” OLC’s discussion of the limits on Congress’s power to spend money simply omits any discussion of this repeatedly exercised legislative authority and interest.
Nixon v. Administrator also recognized a congressional interest in preserving materials for use by future administrations and Congresses. When I worked in the White House Counsel’s Office, we made several requests to the Archives for records from past administrations because no one had firsthand knowledge of what had happened in previous administrations. Unlike say, OLC, the Solicitor General’s Office, the State Department, or the Department of Defense, most components in the Executive Office of the President do not include career officials or staff who have served across multiple administrations; they consist wholly of individuals appointed as part of the current administration. Moreover, beyond just firsthand experience, OLC and many agencies have internal records and databases that collect past materials in a searchable archive for use by current officials. (When I was at OLC, for example, one of the career employees began an invaluable long-term project digitizing, organizing, and collating all past OLC internal documents and creating a searchable database for use by OLC attorneys.)
The PRA serves this vital function for White House and presidential records, a function undeniably important for the operation of the federal government. Indeed, as noted, OLC itself later recognizes this function as the “core purpose” of the statute. As Nixon puts the point, because of the PRA, the incumbent president is not “dependent on happenstance or the whim of a prior President when he seeks access to records of past decisions that define or channel current governmental obligations.”
Take the pardon example posed in the Justice Department brief discussed above. What if there is a later dispute about the scope of the president’s pardon or the intent of the pardon, and prosecutors need to read the pardon itself and maybe even review some surrounding documents to understand the scope and intent of the pardon and to give the president’s intent full effect. The PRA ensures that the official record of that pardon will be available to later administrations trying to execute their constitutional and statutory authorities. This function of the PRA does not restrain the president’s exercise of the pardon power in any way; it actually protects it by ensuring an accurate and lasting record of it, and the intent behind it, exists. Surely that is an “appropriate” means of assisting government officials in the execution of their duties.
The Threat to Judges
Both the Justice Department brief and the OLC opinion have one more not-so-subtle card to play on this point. On the first page of the opinion, OLC writes, “Just as Congress could not constitutionally invade the independence of the Supreme Court and expropriate the papers of the Chief Justice or Associate Justices, Congress cannot invade the independence of the President and expropriate the papers of the Chief Executive.” The Justice Department fully embraces this tactic. On the first page of the brief, in the second sentence of its introduction, the department threatens: “Just as it would flout the separation of powers for Congress to require the Supreme Court to broadly disclose its deliberative records to the public pursuant to legislative edict, so it is with the PRA.” In other words, watch out judges (and justices!), if you side with the PRA, Congress is coming for you next. This thinly veiled threat aimed at the judiciary is as wrong as it is obvious.
The exact same authorities and interests that give Congress the authority to regulate the public papers of presidents give Congress the authority to regulate the public papers of the judiciary. As the Final Report of the National Study Commission on Records and Documents of Federal Officials stated in 1977, “the Public Papers of Federal Judges are created in the course of doing the public’s business, using Government facilities, and at public expense,” and the existing system “has not functioned well in terms of preserving an adequate historical record of the judicial-decision making process.” Could there be constitutional limitations on Congress’s ability to compel disclosure of judicial records? Certainly, just as constitutional doctrines such as executive privilege limit Congress’s authority with respect to the compelled disclosure of presidential and other executive branch records. But the PRA does not, as the Justice Department intimates in its brief, compel the president to “broadly disclose” records. It allows the outgoing president to broadly prohibit disclosure for the 12 years after he leaves office, and then it allows the former and incumbent presidents to object to disclosure and, if needed, assert executive privilege to prevent disclosure in perpetuity. These same types of protections, including more specific protections tailored to the unique nature of judicial records, would be part of a similar statutory scheme governing judicial records.
Importantly, Congress has not enacted any comparable judicial records law, even though the commission’s recommendations that led to the PRA supported applying the law’s requirements to the judiciary. That is Congress’s choice, under the Constitution. To suggest that Congress lacks constitutional authority to regulate judicial records at all, however, ignores the number of ways in which Congress already regulates and preserves judicial records, particularly those of lower courts, and represents the worst kind of constitutional argument—a blatant attempt at intimidation.
The Justice Department is correct about one thing. Congress’s authority to preserve and protect public records does not depend on which president, judge, or official happened to write, receive, download, or copy the record. Nor should it depend on whether Supreme Court justices are nervous that Congress may try to exert authority over judicial records. Congress’s power depends on the broad authority granted to it in the Constitution. And attempts to “persuade” the judiciary by emphasizing and exaggerating a potential “threat” to the judiciary have no place in constitutional analysis.
The Imaginary “Burden” of the PRA and Manifest Logical Fallacy
The vast bulk of OLC’s opinion is devoted to rejecting a straw man argument—that the PRA is a valid exercise of Congress’s implied authority to conduct oversight. That analysis is not only irrelevant—the PRA, as discussed and as others have well demonstrated, is easily and much more naturally justified as an exercise of other congressional authorities—but it is also wrong.
The “burden” that permeates OLC’s analysis is illusory and rests on a conflation of two distinct concepts masked by clever wording. Both its constitutional analysis and its use of history rest on an unsupported and unstated false equivalency—that the “regulation” and preservation of presidential papers is equivalent to the compelled disclosure of those papers to Congress or to the public. By painting the PRA in this way, OLC unlocks a treasure trove of executive-branch friendly OLC writing and previously collected history related to executive privilege and congressional oversight.
Most importantly, this sleight of hand that equates the PRA to disclosure allows OLC to repeatedly invoke the extensive OLC opinion on congressional oversight of the White House published at the very end of the first Trump administration. I have two forthcoming papers that discuss the importance of this little-known opinion at length—one on investigations of the White House and another on Congress’s power of investigation in impeachment—because that opinion enumerates a number of very robust defenses the executive branch can and does utilize to thwart essentially all investigations into wrongdoing in the White House, including congressional investigations. The OLC opinion claims that all of those defenses to disclosure are equally applicable to the PRA’s preservation and regulation requirements.
Utilizing the false equivalency that regulation equals disclosure also allows OLC to invoke its highly contested opinions concluding that senior advisers are absolutely immune from compelled testimony. Those opinions adopt, in part, what I have called prophylactic executive privilege—the idea that any potential burden on privilege allows the executive branch to invoke absolute constitutional defenses against the threat of disclosure. OLC argues that the PRA poses this same “threat” to privilege, despite the fact that the PRA explicitly allows for assertions of privilege and does not present the same risks of inadvertent disclosure that compelled testimony to Congress might present.
Equating “regulation” with “disclosure” also unlocks the well-trodden history with which anyone familiar with OLC’s arguments on executive privilege is well acquainted. Repeating historical examples that first appeared in a somewhat mysterious memorandum during the Franklin Delano Roosevelt administration and later became the foundation for the modern understanding of executive privilege, the OLC PRA opinion details tired examples involving, among others, Presidents Washington, Jefferson, Monroe, Jackson, Grant, and Cleveland. All of these have been invoked numerous times in support of a historical lineage for executive privilege, which the PRA both retains and protects. And every single one of them involves a congressional request or demand for the disclosure to Congress of particular presidential records.
That fact is obvious by reading the full title of the principal source that the OLC PRA opinion cites for these examples, a 1982 opinion entitled “History of Refusals by Executive Branch Officials to Provide Information Demanded by Congress: Part I: Presidential Invocations of Executive Privilege Vis-á-Vis Congress.” These examples have absolutely nothing to do with the preservation of records or, to use the term OLC chooses to mask the conflation, the “regulation” of records (or, with more rhetorical flourish, the “expropriation” of records). Indeed, an individual unfamiliar with the PRA who read the OLC opinion might be shocked to learn that the PRA creates an elaborate system to ensure that both an incumbent and a former president can still assert executive privilege. Nixon v. Administrator made a point of relying on this very fact about the statute at issue in that case to reject Nixon’s separation-of-powers argument.
Moreover, every historical example that OLC cites involves Congress trying to get information from a current president. The PRA does not impose any burden whatsoever related to disclosure on a current president; it establishes mandatory preservation rules on the current White House, rules that are interpreted and applied largely in a manner left to the sole discretion of the current president. But it does not provide for disclosure of records from a current president—the “harm” that is at the heart of OLC’s constitutional doctrine in this area and that is the concern of all of the historical examples cited by OLC. The PRA has no impact on the disclosure of records from a current administration (though at times records from a past administration may relate to an incumbent administration, such as when the incumbent is a former president with an intervening president or when the incumbent was formerly vice president). The PRA simply ensures that the government retains the official records of its operation.
The only other “burden” cited by OLC is the fact that the White House Counsel’s Office has to spend a lot of time to comply with this law. That is somewhat true, particularly at the end of an administration, but the idea that the constitutionality of a statute should depend on how much work it requires White House lawyers to do is preposterous and, unsurprisingly, does not feature in the Justice Department briefs defending the opinion.
In short, by characterizing regulation and preservation as disclosure, or threatened disclosure, OLC can take refuge in the same prophylactic doctrines that it does in the context of congressional subpoenas. Whatever one thinks about those OLC doctrines related to compelled testimony and executive privilege, the PRA simply has nothing to do with them. The entire analysis of the oversight portions of the PRA opinion as well as much of the history rests on the hope that the reader will not notice this fundamental difference between “regulation” (or, in some rhetorical flourishes, “expropriation”) and “disclosure.”
Implications for OLC, the White House, and the PRA
What should one make of all of this, and why does it matter? The answers to those questions are still emerging. The Justice Department’s filing attempts to assuage any concerns by attaching a records retention policy for the current administration and by attaching a declaration from a NARA official indicating that the Archives continues to possess and process presidential records from past administrations. But, as explained below, those assurances are both incomplete and subject to potential abuse. The litigation will likely take some time to resolve, and future developments will undoubtedly raise additional issues. The OLC opinion is complete, however, and has been formally published. Currently, the Justice Department is defending the opinion’s conclusion as the constitutional position of the executive branch. The implications of that are relatively clear.
The Legitimacy of OLC
The fact that OLC released this opinion, written in this manner, and at this time also says something larger—and more depressing—about OLC as an institution. At a time when many institutions, including the Justice Department itself, have been weaponized and career officials fired or sidelined, the capitulation of OLC is hardly surprising, particularly to the general public. And no one familiar with OLC’s history and role is likely to be surprised by an opinion adopting an expansive view of presidential authority.
But even accepting all of that, this opinion is shocking in the manner in which it departs from norms to which even highly controversial OLC opinions have long adhered. Most strikingly, the opinion makes a half-hearted attempt to distinguish Nixon v. Administrator that does not withstand serious scrutiny before simply declaring it “wrong.” The opinion and the Justice Department briefs argue that the statute at issue in the case was “demonstrably tied to the particular context of Watergate” and covered a “discrete set of identified materials” and was thus “distinguishable.” They argue that because Nixon had entered into an agreement that would have allowed the records’ destruction, Congress had a legitimate interest in their preservation and in ensuring they were available for a “full airing” of the events of Watergate. But neither the opinion or the briefs explain why Congress’s constitutional authority to legislate to preserve records would depend on whether the records are “discrete” or whether there is an existing need for a “full airing” of a past scandal. Constitutional authority does not change because a scandal has occurred, and the interests underlying the PRA are, as the opinion and briefs acknowledge, essentially the same as those underlying the statute at issue in Nixon v. Administrator.
Recognizing this, the opinion and briefs ultimately acknowledge that Nixon v. Administrator “might seem to support” the PRA and address many of the same issues raised by OLC. But then the opinion simply dismisses it as “wrong.” I have not done an exhaustive search, but I cannot think of another example of OLC treating directly relevant Supreme Court precedent so cavalierly, particularly when the Court’s decision is doubly reinforced by previous OLC and Justice Department precedent.
When drafting opinions, OLC purportedly follows certain “best practices”—as outlined in a memorandum—that apply across administrations. When I started at OLC, I was handed this memorandum and advised to read it carefully. One of the “guiding principles” of those practices is that “OLC must provide advice based on its best understanding of what the law requires” and “in rendering legal advice, OLC seeks to provide an accurate and honest appraisal of applicable law, even if that appraisal will constrain the Administration[.]” Later on, the best practices memo emphasizes that when a question involves presidential authority, “precedent and historical practice are often of special relevance.”
Nixon v. Administrator is currently the “applicable law” and most relevant precedent. But the PRA opinion treats the decision as if it were a law review article or blog post that carries no legal weight, rather than a binding Supreme Court precedent that addressed (and rejected) almost all the arguments in the OLC opinion. Nor does the opinion acknowledge that the Supreme Court reached its decision in Nixon at the behest of the Justice Department defending the law’s constitutionality.
OLC’s best practices memo also admonishes attorneys in the office to “consider and ordinarily give great weight” to past opinions by attorneys general and OLC and to “not lightly depart from such past decisions, particularly where they directly address and decide a point in question.” The PRA opinion, with barely a shrug, flouts these best practices that are themselves layered together. Nixon upheld the predecessor statute to the PRA, adopting many of the arguments made by the Justice Department. Then, in 1978, OLC analyzed Nixon and the proposed PRA and concluded that it was constitutional. OLC and the executive branch have adopted and followed that position for almost a half century.
Despite these numerous interlocking layers of judicial and executive branch precedent and history, OLC has now decided Nixon v. Administrator is “wrong” because it represents (and this is in fact a direct quote from the OLC opinion) “the ancien regime” of the Court’s approach to separation of powers. (The opinion quotes that language from Ziglar v. Abbasi, a case about damages actions against government officials that has almost nothing to do with the PRA or Nixon v. Administrator.) That might be news to the Court, which cited Nixon v. Administrator as the primary case guiding its interpretation of the Constitution’s separation of powers in Zivotofsky v. Kerry, one of the most important separation-of-powers cases to reach the Court in the past decade or so. Hard to understand that as an ancien regime.
What’s more, the OLC best practices memo counsels that the office should “avoid issuing advice on abstract questions that lack the concrete grounding that can help focus legal analysis.” In contravention of this principle and unlike almost every other published OLC opinion, the PRA opinion is not addressed to any specific, pending legal dilemma. The opinion answers the “abstract question” of the constitutionality of the PRA without any present need to address that sweeping question, particularly given the White House’s contention in the litigation that it continues to preserve records. In other words, the opinion appears to have been written at the whim of the counsel to the president, not in connection with any particular action or controversy. The sloppiness of the research, omissions of centrally important issues, and hyperfocus on a largely irrelevant argument suggest the opinion was done in haste, upon request of the White House and in support of a conclusion dictated by the White House, without the need for serious legal analysis to determine the answer.
For all intents and purposes, it appears that the White House wanted a legal opinion saying the entire PRA is unconstitutional—perhaps to retroactively justify Trump’s actions at the end of his first term that resulted in his indictment in federal court or perhaps to preemptively ensure that no one can access any of the records from his first term that are currently in the National Archives. Much to its embarrassment, OLC obliged and appears to have provided the opinion on call, forsaking its typical practice of reserving its constitutional judgment for present, concrete constitutional questions.
The Potential for White House Abuse and Selective Enforcement
The most troubling implication of this opinion may be the discretion that the opinion hands to the White House and archivist regarding the disclosure and management of existing presidential records and the preservation of current records. Although the standard is not a high one, the weakest analysis of the entire opinion might be the part addressing the severability of the PRA, that is, whether the parts of the PRA that are purportedly unconstitutional can be “severed” from the other, constitutional provisions of the PRA. Put another way, the analysis asks whether constitutional parts of a statutory scheme can remain in force if a court declares separate provisions unconstitutional. Unlike the severability analysis required by the Supreme Court, however, the opinion’s analysis never specifically identifies which provisions are unconstitutional. Nor does it make any attempt at all to preserve innocuous parts of the PRA that, for example, impose certain duties on the archivist and have nothing to do with the president or White House. The basic conclusion of the opinion is that the PRA is intended for one thing and one thing only—to investigate the president—and Congress would not have wanted to keep any of the provisions in the PRA if the statute could not be used for that investigatory purpose. As noted, the entire premise of the argument is wrong—investigation of the president was not the primary, let alone sole, purpose of the PRA. In its briefs, the Justice Department brief barely defends the position (largely on a different basis) and then falls back on the argument that the plaintiffs are not injured by the severability analysis and thus lack standing to challenge that aspect of the opinion.
Declaring the entirety of the statute unconstitutional is of enormous benefit to the president, however. It removes all statutory obligations and requirements that could potentially apply, including preservation requirements. And it allows the archivist, who is appointed by the president, to take whatever actions he chooses with respect to the expansive set of existing records from past administrations. On April 3, just two days after the release of the OLC opinion, President Trump appointed Ed Forst as acting archivist of the United States (Marco Rubio, jack-of-all-trades, had been serving in this role previously in addition to his other jobs). Forst, who is also the current administrator of the General Services Administration and had a long career in finance and private equity prior to joining the Trump administration, has no relevant archival, historical, or recordkeeping experience. But he now has enormous, really unlimited, power to decide what to do with a half century of presidential records. The PRA, after OLC’s opinion, places no constraints on his discretion.
Take for example the current requests by Republican members of the House of Representatives for records related to Biden’s use of the autopen. James Comer submitted a request, pursuant to the PRA, for certain records, and the Trump administration complied with those requests, refusing to honor a claim of privilege by former President Biden over the materials. But if the House flips to Democratic control this November, would the archivist honor the same types of requests by Democrats for records from the first Trump administration? Almost certainly not, and neither the archivist nor President Trump would have to assert any privilege or justify the withholding in any way. Because of the breadth of the OLC opinion and its severability analysis, even the provisions of the statute allowing Congress to access past records are void.
In 1978, the country, still rocking from Watergate and its aftermath, enacted a robust statutory scheme to preserve presidential records. The Supreme Court had recently affirmed Congress’s power to enact such a scheme in Nixon v. Administrator. And the resulting scheme, understanding that concerns could arise from the preservation of these records, sets out detailed procedures for requesting documents and mechanisms for protecting privileged information from past administrations. That statutory scheme vests considerable power in the incumbent president and archivist over records. But it also constrains that authority in some ways and mandates certain procedures and findings that govern and provide a record of the administration’s exercise of these authorities. The OLC opinion throws all of that out the window. Everything—from disclosure itself to the applicable procedures and explanations that must be followed and provided—is now at the discretion of the archivist and the president.
The Preservation of Current White House Records
The implications for the preservation of records during the current administration are the consequences of the opinion receiving the most attention and the ones principally at issue in the litigation. The parties have sought a preliminary injunction, asking the court to direct the White House to comply with the requirements of the PRA during the pendency of the litigation so that records are not irretrievably lost.
In the same way that the disposition and regulation of records from past administrations now depends on the sole discretion of the archivist and president, the preservation of current records depends wholly on the president’s whim. The Justice Department filing in one case includes an attachment from White House Counsel David Warrington that provides guidance on the current White House records retention policy. The Justice Department asserts, incorrectly in my view and others’, that this new policy complies with the preservation requirements of the PRA. The nuances of that assertion are complicated—though worth analyzing—but there is one glaringly obvious hole in the policy attached to the filing. Every single one of its preservation dictates relates to “EOP staff” or “EOP employees.” “Staff” and “employees” are not defined terms. But it would seem that the president is not “staff” or an “employee.” It is not clear whether senior officials in the White House or, for example, the heads of agencies would be covered either. The policy thus says nothing about the retention of the most important records covered by the PRA, those of the president and his senior advisers and officials. And the records policy establishes a new approach to text messaging—preserving only those texts that are the “sole record of official decisionmaking” as opposed to the statute’s requirement to preserve “any documentary materials” created or received in “the course of” official duties.
In the second case, the Justice Department attaches a declaration from the director of White House information technology that asserts that all electronic communications, including text and Signal messages on government phones, are being captured and preserved, just as they were previously. But, again, it is not clear this will encompass all official business because it again covers “employees” and does not purport to dictate the preservation of records of official business conducted on personal property.
Given the current president’s history with laws governing the disposition of documents and the reported instances of using Signal for official, classified conversations, it is not surprising that many concerned organizations and individuals—including the plaintiffs in the current litigation—are hesitant to entrust the preservation of the country’s records to the whim of the president. Faced with these same concerns almost 50 years ago, the elected leaders of the country decided not to entrust the historical record to whim and individual manipulation. The result was the PRA, crafted after extensive study and debate, in accordance with the Supreme Court’s definitive recognition of congressional power to undertake such a task, and affirmed and adhered to by every president since, starting with President Carter’s glowing endorsement as he signed the statute into law. OLC has now declared that the president “need not follow” the dictates of the PRA, and it has returned the preservation of the historical record to the whim of the president and other individuals within the White House. OLC contends that the Constitution requires that result. Very few others agree.
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