Historians sue DOJ over presidential records opinion : NPR

Over the past year, President Trump has bulldozed through multiple restraints on his power. He’s fired watchdogs, dismantled agencies, and declared emergencies to impose tariffs and mobilize troops.

Now, he’s shrugging off a law Congress passed decades ago to preserve White House papers — and historians are taking him to court.

At stake is the fate of millions of papers and electronic messages – not just for Trump’s second term in office, but for future presidents and people who want to understand them.

Matthew Connelly, a history professor at Columbia University, says the move shows Trump is trying to ensure the presidency “is answerable to no one, not even the court of history.”

“This latest case is just another example of the utter contempt with which they hold not just history but the rights of their fellow citizens to hold them to account,” he said, about the current administration.

The story begins more than a half century ago, in July 1974, when the Supreme Court unanimously ordered President Richard Nixon to turn over White House recordings to a special prosecutor.

Nixon left office only a few weeks later, setting off a struggle over the ownership of presidential papers.

Congress passed a law putting Nixon’s presidential papers in the custody of the National Archives. Then, in 1978, Congress acted once again — to apply that concept to future presidents. President Jimmy Carter said the Presidential Records Act “carries forward my commitment to making sure that our government is not above the law.”

New memo from DOJ legal counsel

Administrations led by both Republicans and Democrats have largely honored that law, until now.

Earlier this month, the Justice Department concluded the Presidential Records Act (PRA) is unconstitutional because it violates the separation of powers.

“The PRA … unconstitutionally intrudes on the independence and autonomy of the President guaranteed by Article II,” wrote T. Elliot Gaiser, head of the DOJ’s Office of Legal Counsel. “The Act establishes a permanent and burdensome regime of congressional regulation of the Presidency untethered from any valid and identifiable legislative purpose.”

Gene Hamilton, who served as deputy White House Counsel last year, and served at the Department of Justice in Trump’s first term, supports strong executive power.

“The notion that the United States Congress gets to tell the President of the United States what he gets to do with his paperwork is, from a constitutional perspective, insane,” said Hamilton, who now leads the nonprofit America First Legal, or AFL.

AFL issued a white paper asserting that a president has unequivocal power over his records in 2023. That was months after Trump was indicted on obstruction of justice charges for allegedly stockpiling classified documents in a bathroom, ballroom and office at his Mar-a-Lago resort.

The Justice Department dropped the case after Trump won re-election the following year.

Mar-a-Lago case hangs over decision

Historian Timothy Naftali said the Florida case explains a lot about the White House’s approach to the records law.

“His attack on the Presidential Records Act is an attempt at post facto vindication for having taken public property to Mar-a-Lago,” said Naftali, the former director of the Nixon Presidential Library.

The American Historical Association is so concerned about what may be happening to papers inside the White House that they’ve taken the Trump administration to court. Last week, they asked a federal judge in Washington, D.C. to block people inside the government from trashing presidential materials.

“Do we want future presidents to be able to destroy at will documents that do not put them in the best light?” Naftali asked.

White House spokeswoman Abigail Jackson said, “President Trump is committed to preserving records from his historic Administration and he will maintain a rigorous records retention program.” In a written statement, Jackson said staff members will undergo training on document preservation.

But lawyers for the historical association and the watchdog group American Oversight said that training does not appear to apply to the country’s two highest-ranking leaders: Trump or Vice President Vance.

Dan Jacobson, a lawyer for the historians, said the Supreme Court found an earlier version of the records law was constitutional, in another case from the Nixon era. But the Trump Justice Department memo disregarded that precedent.

“They just say we just think the Supreme Court is wrong and they use the word ‘wrong’ several times,” Jacobson said. “So the executive branch is taking for itself the authority to declare the Supreme Court got it wrong and they can ignore a law based on that disagreement.”

Christopher Fonzone, a former leader in the Justice Department office that issued the new records act memo, likened it to “a bolt of lightning unanticipated by any Executive Branch or Supreme Court opinion or even contemporary legal scholarship,” in a recent essay on the website Just Security.

White House mysteries still unfolding

Historians are still using presidential documents to understand key moments in history where the country and the world appeared on the brink.

For example, Connelly of Columbia University mentioned new understandings of the danger surrounding the Cuban missile crisis in 1962. He wondered if targeting orders and other operations could remain secret forever, if the Trump interpretation of the records law prevails.

“In America, I think most of us have now come to understand that the president works for us, right? The papers, the records of the decisions they make on our behalf, those are our papers, that’s our history,” he said.

Naftali said the court battle now echoes far beyond the present moment.

“This is about whether we can hold our most powerful leader accountable and I don’t know how you hold them accountable if they can destroy the record of their actions in government,” he said.

Both sides of the legal dispute are likely to appear in court early next month.