In a last-minute attempt to assuage outgoing President Donald Trump’s privacy concerns, the Justice Department last month issued a legal opinion creating a situation where, upon taking office, President Joe Biden would not be able to access certain electronic records from the previous administration—even if those records are on the president’s computer hardware.
The six-page memo—penned by the DOJ Office of Legal Counsel (OLC) Deputy Assistant Attorney General Devin DeBacker, an apparent “gymnastics enthusiast”— states that under the Presidential Records Act (PRA) the U.S. Archivist, not the incoming president, assumes responsibility for the “custody, control, and preservation of” all records of the previous administration. DeBacker previously worked under Trump’s former White House Counsel Pat Cipollone.
“Consistent with NARA’s [National Archives and Records Administration] longstanding view and practice, we conclude that the Archivist assumes custody and control of electronic presidential records of an outgoing President that remain on EOP [Executive Office of the President] hardware after the end of the outgoing President’s term,” the memo stated. “Nothing in the PRA eliminates their status as ‘Presidential records’ subject to the PRA, or makes them presidential records of the incoming Administration, merely because they remain temporarily on EOP hardware following the change in Administrations.”
Kel McClanahan, the Executive Director of National Security Counselors, a public interest law firm specializing in national security law and information and privacy law, called the opinion “balls to the wall bonkers.”
“Holy $%^& that is one hell of an OLC opinion. According to this, Biden would have to ask NARA’s permission to read files that are on HIS OWN COMPUTERS. And the Archivist would be able to tell the President of the United States ‘nope, you can’t read that,’” he wrote after reading the opinion. “This is one of those OLC opinions that clearly illustrate the phenomenon I’ve spoken and written about before, namely, that OLC will justify ANYTHING, no matter HOW CRAZY, that the President wants to do.”
Here’s the part of the OLC memo that McClanahan was talking about (emphases ours):
Even though electronic presidential records will temporarily remain physically situated on [Executive Office of the President] property, the Archivist will have legal responsibility for the “custody, control, and preservation of, and access to” the records, id. § 2203(g)(1), just as the President can have responsibility for certain records in NARA’s possession under 44 U.S.C. § 2203(f). Consequently, the incoming Administration’s access to electronic presidential records of the outgoing Administration will be subject to the Archivist’s general control and the PRA’s provisions. For instance, with respect to specific records over which the outgoing President has restricted access, see id. § 2204, the records will be made available to the incoming President “if such records contain information that is needed for the conduct of current business of the incumbent President’s office and that is not otherwise available,” id. § 2205(2)(B). The incumbent President would need to request access to such records from NARA notwithstanding the fact that they remain physically present on EOP property. NARA would then notify the former President of the Archivist’s intent to disclose the records, and the former President could assert a claim of constitutionally based privilege, subject to the incumbent President’s determination whether to uphold that privilege.
McClanahan’s sentiment was echoed by the former director of the U.S. Office of Government Ethics Walter Shaub.
“This is insane. In the waning days of the Trump administration, DOJ’s Office of Legal Counsel decided once again to show it will say anything for a president. OLC is the ‘Mikey likes it’ of government offices. In this episode, it said that Biden can’t see presidential records,” he wrote.
Neil Eggleston, the former White House counsel to President Barack Obama during the Trump transition period, told Business Insider he was concerned that Trump’s legal team may try and use the memo to “claim an overly broad exclusion from the right of the Biden administration to access documents critical for the continuity of government.”
Read the full memo below:
[image via ANDREW CABALLERO-REYNOLDS_AFP Getty Images]
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