Main: Then-former President Donald Trump gestures after speaking at Trump National Golf Club in Bedminster, N.J., Tuesday, June 13, 2023, after pleading not guilty in a Miami courtroom earlier in the day to dozens of felony counts that he hoarded classified documents and refused government demands to give them back. (AP Photo/Andrew Harnik, File). Right inset: President Richard Nixon tells a group of Republican campaign contributors, he will get to the bottom of the Watergate scandal during a speech on May 9, 1973 in Washington (AP Photo/John Duricka, File).
The Trump administration's ongoing attempt to cancel the Presidential Records Act (PRA) is a green light for current and future chief executives to "destroy" records at will before they leave office, or to take those documents with them, historians and multiple watchdog groups warned Wednesday in an appellate brief.
The White House came nowhere close to convincing Senior U.S. District Judge John Bates in May that Congress didn't have the authority to enact the PRA in the aftermath of Watergate. That hasn't stopped the DOJ from "swing[ing] for the fences" on appeal, repeating the Office of Legal Counsel's position that the "entire Act is facially unconstitutional," the Freedom of the Press Foundation and the American Historical Association (AHA) told the U.S. Court of Appeals for the District of Columbia Circuit.
"Defendants would dismantle that system and relegate continuity of government to the whim of each President in power. In their view, the President may destroy his Administration's records—including national security records—as he sees fit, or take the records with him for private use after leaving office, and Congress can do nothing about it," the brief said.
Attorneys with American Oversight, Citizens for Responsibility and Ethics in Washington, Jacobson Lawyers Group PLLC, and Georgetown Law's Institute for Constitutional Advocacy & Protection said that the DOJ isn't challenging Bates' rulings on a host of issues and has "forfeited" the chance.
The plaintiff-appellees maintain that the D.C. Circuit should affirm the George W. Bush-appointed district judge's straightforward conclusion that the PRA was "validly enacted" — and that the White House must "preserve and not destroy or delete presidential and vice presidential records."
"On appeal, Defendants abandon most of their arguments below. They do not challenge the district court's rulings that Plaintiffs likely have standing and can assert equitable causes of action, or that Defendants are likely disregarding the Act's mandates; nor do they offer any meaningful argument that the other injunction factors favor relief," court documents said. "Instead, Defendants swing for the fences, arguing only that the entire Act is facially unconstitutional."
"That audacious claim requires them to establish that the Act has no constitutional application in any circumstances, or to identify an unconstitutional provision that cannot be severed. They do neither, and that alone requires affirmance," the brief added.
In April, the OLC issued an opinion stating that Trump "need not further comply" with the PRA because it is "invalid in its entirety" and "unconstitutional." The memo referenced Trump's dismissed Mar-a-Lago classified documents prosecution 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."
After President Richard Nixon's failure to challenge the Presidential Recordings and Materials Preservation Act in the case of Nixon v. Administrator of General Services, Congress ensured through the PRA that the United States had "complete ownership, possession, and control" over presidential records. The law required 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 and the American public.
On appeal in July, however, the DOJ said that Bates "erred" by not seeing that the PRA was a "sweeping intrusion on the President's executive function[.]"
"Without any commensurate finding of legislative need, the Act abolishes the historical prerogative of the President to control his own papers and compels the President to throw open all of his nonprivileged files to the world," the DOJ asserted.
But the historians' attorneys were keeping score.
"Indeed, despite the Act's 50-year history, Defendants fail to identify even a single real-world example substantiating their claim that the Act interferes with the presidency's functioning," they countered on Wednesday. "Defendants instead rest on abstract concerns about chill and administrative burdens, all of which were rejected by the Supreme Court when it upheld the Act's predecessor statute."