President Donald Trump’s administration has declared war on public records law, former prosecutor Joyce Vance wrote on her Substack Thursday — and in doing so, executed a “power grab” and “overruled the Supreme Court,” or at least laid the groundwork to try to.
“Enacted in 1978, in the wake of Watergate, the Presidential Records Act (PRA) makes all records created or received by the President, Vice President, and their staff in the course of official duties the property of the United States government,” wrote Vance. “The PRA is the law. It’s clear. Presidents are advised about the requirement when they take office. So the reports that Trump was destroying his records should have been taken as an early warning sign of his utter disregard for the law. Instead, they were treated more like a cute affectation, a sign that this was an outsider who was new to being a political insider. At most, he was a little difficult to work for.”
Already, Trump treated this law as optional in his first term, tearing up important documents and forcing White House staff to painstakingly tape them back together — and his removal of thousands of documents, including classified information, to Mar-a-Lago formed part of special counsel Jack Smith’s criminal case against him.
This time around, the administration’s Office of Legal Counsel — headed up by far-right former Samuel Alito law clerk T. Elliot Gaiser — straight-up issued an “opinion” that the PRA is unconstitutional.
“Gaiser’s opinion regarding the PRA concludes that it ‘unconstitutionally intrudes on the independence and autonomy of the President,’” wrote Vance. “The result is that ‘the President need not further comply with its dictates.’ But the Supreme Court held that a nearly identical law was constitutional almost 50 years ago when President Nixon, upon leaving office, challenged the first version of the PRA. The OLC opinion fails to explain why that case is no longer good precedent. Gaiser seems to have simply, with the stroke of a pen, overruled the Supreme Court.”
Already, a group of historians have sued and asked a federal judge to order the administration to disregard the OLC opinion — and the case has been assigned to U.S. District Judge Beryl Howell, who has a track record of upholding checks on the executive.
“Intuitively, it makes sense to preserve our history,” Vance concluded. “The question the administration should have to answer here is: Why wouldn’t it?”
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