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WASHINGTON (CN) — A recent opinion by the Justice Department’s Office of Legal Counsel opened the door to striking down a key Watergate-era statute that ensured public access to presidential records as unconstitutional and has already sparked litigation seeking to affirm the Supreme Court’s upholding of a nearly identical law.
Last Wednesday, the Office of Legal Counsel issued an opinion stating the Presidential Records Act of 1978 was unconstitutional because it exceeds Congress’ enumerated oversight powers and impacts the independence and autonomy of the executive branch, stating that “congressional attempts to regulate the president raise heightened separation of powers concerns.”
The statute specifically holds that presidential records are owned by the public rather than being the private property of the president and requires the preservation of records documenting the performance of official duties by the president and White House staff.
On Monday night, the American Historical Association and American Oversight sued the Trump administration in the U.S. District Court for the District of Columbia, challenging the Justice Department’s interpretation of the statute and seeking court intervention to ensure the administration abides by its record-keeping obligations.
“This case is about the preservation of records that document our nation’s history and whether the American people are able to access and learn from that history,” the groups argue. “Yet the stakes of this case are even greater.”
“The executive branch has declared the power to override the legal determinations of the U.S. Supreme Court, in order to override the laws passed by Congress to preserve and provide public access to official records of the president’s activities,” the groups continued. “The executive branch has nullified the determinations of the other two branches of government so that the president may claim these official government records to be his own.”
The historical association is specifically requesting Senior U.S. District Judge Beryl Howell, a Barack Obama appointee, to declare the 1978 statute constitutional and the Office of Legal Counsel opinion unlawful.
The association is also requesting an injunction requiring President Donald Trump to disclose any instances of document destruction or retention for personal use and enjoining him from violating the statute when he leaves office.
According to the historical association, the Justice Department’s opinion would empower the president to legally destroy records of his official government conduct or keep them for his future personal use. The opinion would further apply to the nearly 1,000 White House employees.
“The OLC opinion makes no serious effort to distinguish the Presidential Records Act from the prior law that the Supreme Court upheld, the Presidential Recordings and Materials Preservation Act,” the groups argue. “Nor could it. Instead, OLC simply decided that the Supreme Court got it ‘wrong.’”
In the 1977 Supreme Court case Nixon v. Administrator of General Services, the high court ruled in a 7-2 decision that President Richard Nixon — after his resignation following the Watergate scandal — must turn over 42 million pages of documents and 880 reels of tape recordings under the Presidential Records and Materials Preservation Act.
Former Justice William Brennan Jr., a Dwight Eisenhower appointee, wrote in the high court’s opinion that the statute did not violate any of Nixon’s constitutional or privacy rights, nor did it violate the separation of powers by intruding on the executive’s functions.
The Presidential Records and Materials Preservation Act was passed in 1974 specifically to prevent Nixon from destroying the documents and tape recordings. Congress moved four years later to enshrine the public’s right to presidential records under the Presidential Records Act.
Under the 1978 statute, public access to presidential records is governed by how much time has passed since the conclusion of a presidency.
Within the first five years, no records are publicly available while the National Archives processes them. Between five and 12 years, the archivist can determine which records can be made public, under certain restrictions, and then, after 12 years, those restrictions can be lifted.
Trump previously cited the statute in his defense against former special counsel Jack Smith’s criminal case over Trump’s refusal to return sensitive and classified materials after leaving office in 2020.
“The administration’s actions nullifying a law duly enacted by Congress, based on a legal determination that contravenes a decision of the Supreme Court, violate the separation of powers twice over,” the groups argue.
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