Judge likely to block DOJ bid to gut Presidential Records Act

WASHINGTON (CN) — A federal judge signaled skepticism Wednesday that the executive branch could be trusted to voluntarily preserve presidential records under a recent opinion by the Justice Department’s Office of Legal Counsel declaring the Presidential Records Act unconstitutional.

Senior U.S. District Judge John Bates, a George W. Bush appointee, heard three hours of arguments in a set of consolidated cases brought by the American Historical Association and the Freedom of the Press Foundation challenging the Justice Department’s interpretation of the statute.

On April 1, 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.

Daniel Jacobson, of Jacobson Lawyers Group and representing the historical society, argued the Justice Department’s interpretation was clearly erroneous and based on a “flimsy” legal analysis.

He slammed the government’s assertion that Congress had no power to enact the law under its enumerated powers and the statute’s preservation requirements place an undue burden on the executive and its autonomy.

“If Congress says that the president, anytime he’s writing a document, has to have a livestream of it on the internet for everyone to watch, that would certainly inhibit his accomplishing his functions,” Jacobson said.

He added that the Supreme Court previously affirmed the constitutionality of the Presidential Records Act decades ago and rejected every argument the Office of Legal Counsel made in the opinion.

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 Recordings 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.

Jacobson argued the Office of Legal Counsel’s opinion seemed to be ripped straight from Justice William Rehnquist’s dissent, who raised concerns regarding a potential chill the preservation requirement may have on presidential communications.

Jacobson noted that, in the decades since the statute was passed, no president referenced any such chill, including President Donald Trump in his first term.

Justice Department attorney James Powers argued the vast majority of presidential and White House staff records were being preserved, albeit voluntarily under simultaneous guidance issued by the Executive Office of the President.

Powers said there was no need for the court to intervene at the preliminary injunction phase the plaintiffs had requested, as there was no current or looming injury.

Further, he argued Bates was barred from taking any action in the case under a 1991 D.C. Circuit case, *Armstrong v. Bush,*where the court held a president’s recordkeeping practices and decisions are precluded from judicial review.

Bates seemed skeptical of that argument, noting it would likely bar courts from hearing any Presidential Records Act case.

“Your position seems to be, you never can get to the merits because there’s no vehicle by which the executive branch, specifically the White House and the president, have decided not to comply with, because it’s unconstitutional, the Presidential Records Act, that could never get review in the courts,” Bates said.

Powers suggested any such case would have to be on “extremely narrow” circumstances under the statute.

The Presidential Recordings 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.

He specifically cited the statute on June 9, 2023, the same day he was indicted in the Southern District of Florida, stating on Truth Social that he was “allowed to do all this.”

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