Trump’s Office Of Legal Counsel Says Trump Doesn’t Need To Follow The Presidential Records Rules

Leave it to the president that makes us nostalgic for Nixon-era corruption to claim that a law Nixon made necessary is no longer a law.

The Presidential Records Act was summoned into existence by Nixon’s resignation and his subsequent efforts to destroy records generated by his office as he was fumbling his way towards impeachment. It’s only fitting that the only president to challenge this law is someone who makes Nixon’s corruption look semi-competent.

No one was asking — at least outside of the White House — for the DOJ’s Office of Legal Counsel (OLC) to weigh in on this law. But weigh in it did, tipping the scale heavily towards “Let Trump do whatever he wants,” despite Supreme Court precedent to the contrary. (h/t Jamal Greene)

The OLC issued this opinion [PDF] last Thursday. It basically says Trump isn’t obligated to turn over records to the National Archives and Records Administration (NARA) following his second term as president. Presumably, the opinion is also retroactive, which would prevent NARA from continuing to demand records from his first presidency — something that has led to a lot of the litigation Trump engaged in following his 2020 loss, much of which is quoted by the DOJ OLC in support of elevating Trump above the law yet again.

I’m sure the Supreme Court — the one “stacked” by Trump himself — has inured itself Trump’s steady stream of verbal abuse at this point. But I’m pretty sure the OLC telling the Supreme Court its own precedent is invalid isn’t going to win the DOJ any friends when it comes time to defend this legal opinion in court.

Nonetheless, that’s what the OLC does here. Repeatedly.

Nixon v. Administrator is not only distinguishable. It was also wrong in concluding that the PRMPA’s “regulation of the disposition of Presidential materials within the Executive Branch” was not “a violation of the principle of separation of powers.”

[…]

Nixon v. Administrator was also mistaken in reasoning that the PRMPA was not “unduly disruptive of the Executive Branch” […]

[…]

Nixon v. Administrator was wrong to suggest that the executive privilege provisions of the PRMPA avoided separation of powers concerns, and those concerns apply even more strongly to the PRA.

That’s the sort of thing that only a true Trump acolyte could write. That acolyte would be T. Elliot Glaser, assistant attorney general, who was previously best know for this:

In 2020, Gaiser worked as legal counsel for Donald Trump‘s 2020 presidential campaign.^[14] White House press secretary Kayleigh McEnany testified before the House Select Committee on the January 6 Attack that she considered him an expert on constitutional law. Gaiser worked on election litigation after the 2020 presidential election and produced a speech that rejected the results of the election. According to McEnany, the speech appeared similar to one Trump later delivered, and Gaiser “mentioned in passing” the theory that vice president Mike Pence could refuse to recognize electors from certain states.^[4]

It’s great to know that yet another election denier is in a federal position of power, especially with mid-term elections only months away. Prior to this, Gaiser clerked for three federal judges: Edith Jones, Neomi Rao, and (of course) Justice Samuel Alito.

Expecting Gaiser to do anything else but propel forward the administration’s presidents-are-kings-actually theory of executive power is delusional. So is Gaiser’s opinion, which simply says everything prior to this legal memo — including Supreme Court precedent regarding a law that’s nearly 50 years old — is wrong.

Either the administration is certain there will never be another regime change or it’s too stupid to realize Democratic Party presidents will have access to the same theory of power being pushed here, which is going to make them look like idiots when it’s being used against them. Neither option is preferable, and there’s a good chance it’s a 50/50 blend of both.

The silver lining is that this isn’t enforceable in any way. But it will have immediate negative effects. It will make freeing up documents from Trump’s term more difficult. And it will keep NARA from attempting to archive anything its does manage to obtain until the (completely illegitimate) legal questions are settled.