Trump’s apparent frustration with government demands for his records erupted after he left office, when he was investigated by the special counsel Jack Smith and charged with improper retention of classified documents. (The charges were eventually dismissed by U.S. District Judge Aileen Cannon, on the ground that Smith had been improperly appointed.) Boxes from the White House, some containing classified material, had been found crammed into a bathroom at Mar-a-Lago, next to a toilet and below a crystal chandelier. The Times reported that, according to several of Trump’s advisers, when officials from the National Archives pressed for the return of the records, Trump said, “It’s not theirs; it’s mine.”
In his second term, Trump seems determined to operationalize that “mine, mine, mine” world view. His White House counsel, David Warrington, asked the Justice Department’s Office of Legal Counsel to review the constitutionality of the Presidential Records Act of 1978, which requires that Presidents’ records be preserved while they are in office and transferred to the National Archives once their terms are up. The O.L.C.’s opinion, released last month, declared that the law is unconstitutional—that “Congress cannot preserve presidential records merely for the sake of posterity” and that, in addition, the law infringes on “the constitutional independence and autonomy of the Executive.” Therefore, the opinion concluded, “the President need not further comply with its dictates.”
Two lawsuits were quickly filed—one by the American Historical Association and American Oversight, a government-transparency organization, and the other by the Freedom of the Press Foundation and Citizens for Responsibility and Ethics in Washington—to require the White House to follow the law. “This case is about the preservation of records that document our nation’s history, and whether the American people are able to access and learn from that history,” the American Historical Association lawsuit asserts, warning of “a clear danger that official government records of the highest importance will be irretrievably lost.” On Wednesday, U.S. District Judge John Bates held a hearing on a request by the groups that he order the Administration to comply with the records law as the case proceeds.
Enacted in the wake of Watergate and the struggle for control of Richard Nixon’s White House tapes, the Presidential Records Act provides that a President’s official records are government property. (An earlier version of the Presidential-records law, passed in 1974, applied only to Nixon.) The law allows a President to exclude personal records, sets out timetables for releasing documents once the President has left office, and provides a mechanism for asserting executive privilege to keep certain material secret. (Trump unsuccessfully sued under that provision when the House Select Committee on January 6th sought access to his first-term records.)