A longtime attorney for the National Archives called out President Donald Trump’s administration for its “assault on the nation’s history.”
The Justice Department’s Office of Legal Counsel issued an opinion this month arguing that the Presidential Records Act is unconstitutional, and Gary M. Stern, a former general counsel for the National Archives and Records Administration, published an op-ed in the Washington Post denouncing the move as a travesty.
“My main job, until I retired last year, was to implement and enforce the Presidential Records Act,” wrote Stern, who served 26 years in that role. “The act requires that the president maintain records of his administration and, at the end of his term, turn them over to the National Archives. Since it went into effect in 1981, the law has ensured the preservation of presidential history — and safeguarded against corruption.”
“I was thus astounded when, on April 1, the Justice Department’s Office of Legal Counsel alleged in an opinion that the law is unconstitutional,” he added.
Stern served under every president dating back to Bill Clinton and worked with records representatives who had served under Ronald Reagan, and he said not one of them ever suggested the law was unconstitutional or anything less than mandatory.
“The overwhelmingly bipartisan support for the Presidential Records Act since it was enacted, in Congress and by presidents, makes the faulty reasoning and distorted history emanating from the Office of Legal Counsel all the more surprising,” Stern wrote. “The office is wrong to conclude that Congress has no authority to pass a law to preserve the nation’s most important government records — those of each presidency — and the American Historical Association and American Oversight are right to jump to the act’s defense.”
Congress did not establish the National Archives until 1934, and presidents voluntarily donated their papers for its first 40 years of existence, but Congress was forced to act to ensure Richard Nixon did not carry though on his intention to destroy the Watergate tapes and passed the Presidential Records Act in 1978.
“The Office of Legal Counsel incorrectly argues that the prior tradition of presidents treating their papers as their personal property precludes Congress from making ‘needful Rules and Regulations respecting the … Property belonging to the United States,’ as Article IV of the Constitution states,” Stern wrote. “In fact, the Office of Legal Counsel’s opinion seems to ignore that Congress crafted the law so that it would not violate the separation of powers.”
Stern argued that the act preserved the separation of powers by requiring sitting presidents to preserve their records but shields them from public view until they leave office, and the law establishes a nonpartisan agency composed of career archival professionals to oversee their preservation and publication.
“By giving President Trump the go-ahead to ignore this vital law, the Office of Legal Counsel has opened the door to uncertainty and potential chaos,” Stern wrote.
“Congress and the National Archives should insist that the Justice Department rescind this opinion and honor the Presidential Records Act,” he added. “If not, then the American Historical Association and American Oversight’s lawsuit will give the courts a chance to halt the Justice Department’s assault on the nation’s history.”
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