Trump admin’s challenge of Watergate-era records law alarms historians

The Trump administration’s abrupt declaration that the federal law governing presidential records for the past 48 years is unconstitutional is creating confusion about access to records of past presidencies, including documents that are on the verge of public release.

The Wednesday memo from the Justice Department’s Office of Legal Counsel, which challenges thePresidential Records Act, appears intended to give President Donald Trump the legal leeway to destroy White House records from his current term. It also gives him legal backing to refuse to hand over any remaining records to the National Archives and Records Administration when he leaves office in 2029.

However, Archives personnel rely on the records law daily to review, redact and make public the documents and digital records of every president since Ronald Reagan. Since Office of Legal Counsel opinions are typically treated as binding throughout the executive branch, the legal framework archivists have followed for decades is now in doubt.

“The OLC opinion potentially opens a can of worms for NARA in terms of how it will proceed to open presidential records from past administrations,” said Jason R. Baron, former litigation director for the Archives.

“If the Trump Justice Department takes the position that the OLC opinion applies retroactively, we might see NARA being forced to declare that records of past administrations covered by the PRA should always have been considered ‘personal’ in nature, and that courts are without jurisdiction to entertain lawsuits … for access to those records,” Baron added.

That could block public access to more than 700 million White House emails, among countless other records, in Archives possession since the law went into effect in 1978, Baron said.

Spokespeople at the Archives and Justice Department did not respond to requests for comment.

The impact of the Justice Department opinion could be felt quickly by historians, scholars and journalists who regularly access presidential records and make requests for their release.

The opinion landed as more than 78,000 pages of records from President Bill Clinton’s administration were set to be opened to the public on Friday, according to notices sent earlier this year to White House counsel David Warrington and Clinton’s representative on such matters, Bruce Lindsey.

White House records typically begin to trickle out five years after a president leaves office, when the Archives begins accepting public requests for them. Due to backlogs and a provision in the law that lets presidents withhold some sensitive advice for 12 years after they leave office, the flow of records often begins to pick up in earnest a decade or more after their term ends.

The Clinton-era records set for release this week include details of deliberations on potential federal appeals court nominees, foreign-investment reviews, the Bosnia conflict, attorney Roy Cohn, businessman Adnan Khashoggi and the Council on American-Islamic Relations.

An official at the Clinton Library in Little Rock said those records were made available as planned. An Archives web page that details forthcoming records releases shows more than a dozen batches of presidential and vice presidential records set to be made public in the coming months. The new legal opinion makes it unclear whether those openings will go forward and whether archivists will continue to add new batches for release.

It’s also uncertain whether the Archives will continue to accept requests from the public for presidential records created since the Presidential Records Act kicked in with Reagan’s files almost a half century ago.

POLITICO reported last month that the Archives received more than 200 requests for White House records from Trump’s first term after the legal window for such requests opened on Jan. 20. The future of those requests now appears to be up in the air.

So far, Archives management hasn’t distributed internal guidance about how to interpret the OLC memo or how it will affect Archives policies, according to a person familiar with presidential records processing, who was granted anonymity to discuss a sensitive matter.

Lawyers involved in discussions about the new legal opinion expect litigation challenging it to be filed within days. DOJ’s pronouncement could also roil pending lawsuits against the agency, including long-running lawsuits for Obama-era records and cases filed in recent months challenging the handling of requests for first-term Trump records.

Kelly McClanahan, a lawyer pursuing several lawsuits seeking copies of records Trump took to Mar-a-Lago during his first term and the White House’s handling of several national security-related controversies, said he was incensed by the new opinion and fears the administration could begin to destroy records at any time.

“He can tell them he wants them to shred anything he doesn’t want them to have,” McClanahan said. “I will be taking immediate steps in those cases to get this in front of a judge. This a gross mischaracterization not only of the statute itself but of the entire concept of separation of powers.”

The 52-page OLC opinion, authored by Assistant Attorney General T. Elliot Gaiser, immediately drew criticism from various quarters. While such opinions typically interpret Supreme Court precedent, Gaiser’s memo flatly declares that a key high court ruling involving President Richard Nixon’s records is erroneous.

“An opinion that calls on-point #SCOTUS precedent about a predecessor statute ‘wrong’ is bound to raise eyebrows,” wrote John Elwood, a prominent litigator who served in OLC during President George W. Bush’s administration.

Meanwhile, historians are crying foul over a move they say upset the balance Congress struck in 1978, declaring presidential records to be federal property, but allowing a period of confidentiality that leads to eventual public access.

“The preservation of these records, both current, past and future, are all essential to democratic processes that depend upon appropriate public scrutiny,” said Sarah Weicksel of the American Historical Association.

Weicksel also said it’s possible the administration was focused solely on giving Trump more flexibility and hasn’t thought through the ramifications of simply abandoning the presidential records law.

“There seems to be an ‘act now and figure out the implications later’ aspect to it,” she said.