Inset: Jack Smith speaks about an indictment of former President Donald Trump, Aug. 1, 2023, at a Department of Justice office in Washington (AP Photo/Jacquelyn Martin, File). Background: President Donald Trump speaks with reporters in the Oval Office at the White House, Tuesday, Feb. 11, 2025, in Washington, D.C. (Photo/Alex Brandon).
A Biden administration lawyer remembered for dismissing Donald Trump's "objections" to the release of former special counsel Jack Smith's Jan. 6 report has penned a response to a controversial DOJ memorandum, calling the opinion's self-liberation from Supreme Court precedent "astonishing."
Former OLC assistant attorney general Christopher Fonzone's lengthy analysis, published in Just Security blog on Wednesday, sounded the alarm that the Trump administration's April Fools' Day memo declaring the Presidential Records Act (PRA) "invalid in its entirety" was no laughing matter.
"This has real consequences, as OLC's PRA opinion effectively frees Executive Branch officials to destroy presidential records," Fonzone wrote, echoing warnings of multiple pending lawsuits that aim to defend Congress' answer to Richard Nixon-style abuses of power and corruption.
Summarizing the legal heft at play as a statement that the Trump administration "would simply like the law to return to what it was before the PRA," the attorney pointed out that the memo did "very little to address, much less cast doubt upon" Watergate-era SCOTUS precedent, even as it claimed the PRA should entirely fall.
"If it seems astonishing that the Executive Branch has purported to free itself from the obligation to comply with an important framework statute merely because OLC has concluded that a seemingly binding Supreme Court precedent is 'wrong,' that's because it is," Fonzone added. "It is not unprecedented for OLC to conclude that a statute is unconstitutional. But it is rare, and I am unaware of any prior OLC opinion that has similarly reached such a broad constitutional conclusion that is contrary to binding Supreme Court and longstanding Executive Branch precedent."
Once tasked with advising Attorney General Merrick Garland on a legal question of significance, Fonzone, in January 2025 and before a change in administrations, rejected Trump's "objections" to the release of Volume I of Smith's report.
Trump had argued that immunity and one judge's conclusion that Smith was unconstitutionally appointed and funded meant Volume I could not go public, but Fonzone said otherwise and the Jan. 6 part of the special counsel's probe was released. The same cannot be said of Volume II, the final report on the Espionage Act and obstruction case against Trump, his valet, and a Mar-a-Lago property manager.
Law&Crime noted previously that current assistant attorney general T. Elliot Gaiser's memo referenced Trump's dismissed Mar-a-Lago classified documents case and slammed "attempts […] to subject a former President to criminal liability for his handling of presidential records that, for most of this Nation's history, would have been subject to his complete discretion."
That helped contextualize the attempt to nullify the PRA, which Congress enacted in 1978 — four years after Nixon lost the Watergate tapes case at SCOTUS and resigned in disgrace. The act gave the United States "complete ownership, possession, and control" over presidential records, requiring that the chief executive "adequately" document "activities, deliberations, decisions, and policies that reflect the performance of the President's constitutional, statutory, or other official or ceremonial duties" for their submission to the National Archives.
During the classified-documents prosecution, then-defense attorney Todd Blanche memorably failed to convince Judge Aileen Cannon that the presidential-records-are-personal tradition, which started with George Washington and should be extended to Trump to exempt him from the criminal process, regardless of intervening SCOTUS precedent.
Cannon, a Trump appointee, nuked the case on other aforementioned grounds and went on to bar the DOJ and Smith from "releasing, sharing, or transmitting Volume II" or "any information or conclusions" about it publicly.
Most recently, Cannon approved the Trump argument that Fonzone expressly rejected as applied to Volume I. She berated Smith for having the audacity to create Volume II in the first place, given that she invalidated his authority, calling that a "concerning breach of the spirit of the Dismissal Order," if not an "outright violation[.]"
Now, the department that Blanche leads as acting attorney general has cited the tossed case as a reason the PRA must be disregarded and challenged out of existence.
"The seeming acquiescence of the Executive Branch since the PRA's enactment may be motivated by nothing more than discretionary choices to avoid an interbranch conflict. But, over time, it has subtly reshaped how the political branches and the public perceive the separation of powers," the memo said. "This shift has already gone so far that attempts have been made to subject a former President to criminal liability for his handling of presidential records that, for most of this Nation's history, would have been subject to his complete discretion."
Jack Goldsmith is a Harvard Law professor remembered for his time in President George W. Bush's administration, heading the OLC in the wake of 9/11, only to resign after less than a year on the job and immediately following his withdrawal of the "torture memos." Given that history, Goldsmith has at times weighed in on OLC-related matters, most recently with an analysis on the legal basis for the U.S. operation to arrest Nicolas Maduro in Venezuela.
Upon reading Fonzone's piece, Goldsmith deemed it a "quietly devastating" articulation of the law as it is.
NYU Law Professor Ryan Goodman, also co-editor-in-chief of Just Security, similarly praised the analysis as the "gold-standard," while calling attention to the assessment of another OLC alum.
Georgetown University Law Center Professor and former Obama administration deputy assistant attorney general Marty Lederman slammed Gaiser, 36, for producing "what might be the most unprofessional and embarrassing opinion OLC has written in recent years (yes, worse even than the Venezuela opinion, even if the stakes aren't quite as great)."
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