DOJ says laws Congress passed to prevent another Nixon don’t apply to Trump.

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This week, Donald Trump’s Department of Justice found a new and disturbing way to try to consolidate power exclusive in the hands of Trump, this time releasing a dubious opinion through the Office of Legal Counsel that argues the president’s records don’t ever need to be publicly shared. The OLC now claims that the Presidential Records Act, which was created in the wake of the Watergate scandal some 50 years ago and makes all presidential records federal property, invades the president’s “independence,” and is thereby unlawful. In practice, it means a man who once claimed he was “the most transparent president in history,” but was also indicted for mishandling classified documents, can legally walk away from the White House with any document he so pleases and never have to publicly report a single one.

The 52-page document is written as if it were a binding judicial opinion, which it is not. The Office of Legal Counsel serves as the president’s quasi in-house lawyer, offering legal analysis on the permissibility of the executive branch’s actions while also playing referee between federal agencies when they disagree. Its decisions can be challenged in court, which is exactly what happened with the OLC’s latest opinion attempting to unilaterally dismantle an act of Congress that sought to protect the people from an out-of-control and secretive president. On Tuesday, the American Historical Association, in partnership with American Oversight, announced they were suing to stop the OLC opinion from going into effect. The OLC’s opinion, they argued, effectively encourages the president to violate federal law, relying on virtually no judicial authority while also defying Supreme Court precedent.

The PRA was established not only to preserve presidential materials as a matter of historical record, but for transparency. After dealing with former president Richard Nixon’s administration and the messy legal battle over the Pentagon Papers, the PRA ensured any future presidential materials would always remain federal property, ensuring transparency with Congress and the public. Trump was charged with crimes in connection with his violation of the PRA and his hoarding of classified documents in a bathroom in his home in Mar-a-Lago at the end of his last term, but was bailed out by one of his friendliest judicial appointments. Unsurprisingly, Trump’s OLC is now saying he did nothing wrong—and that he’s free to violate the law all over again.

David Janovsky has worked on federal transparency issues for decades and is acting director of the Constitution Project at the Project on Government Oversight. I spoke with him to understand exactly what legal argument the OLC is using to try to dismantle the PRA and what it means for the future of government transparency.

This interview has been lightly edited and condensed for clarity.

Shirin Ali: Can you break down the legal argument the OLC is making in its opinion over the Presidential Records Act?

David Janovsky: It’s a pretty breathtaking argument. The OLC is taking a nearly 50-year-old statute that presidents have complied with since the Reagan administration, without any real incident, and has suddenly concluded that the whole thing is unconstitutional because it’s beyond Congress’ power to regulate presidential documents. It goes through a whole lot of really convoluted reasoning to get there, but that’s the main conclusion here: This law that just says presidents have to hand over their official documents to the National Archives, which is part of the executive branch itself, is not, in fact, legal.

The opinion claims there are a few different reasons that the PRA is beyond Congress’ power, but it spends by far the majority of its time making a quite strange argument, frankly, which is conflating Congress’ power to investigate the executive branch with its power to pass laws that set out this technical process for where documents go within the executive branch. There’s a decadeslong dispute between Congress and the executive branch, in particular the OLC, about the scope of Congress’ oversight power, especially over presidents. And these disputes occasionally make it to court and have occasionally made it to the Supreme Court, including several disputes from the first Trump administration. But to suddenly say that that set of issues governs a statute is a very strange thing, especially because the PRA, at its core, mandates that presidents hand over the records to the National Archives, which is not Congress—it is an executive agency. That’s the first analytical step they take, and again, they spend most of the opinion on that. Then they go into a few other grounds that Congress can’t justify it as part of its spending power or as part of its power to regulate agencies, because the presidency is explicitly mentioned in the constitution.

There are big swaths of this opinion where the only things they’re citing are other OLC opinions, or even what seems to be a panel discussion that involved DOJ lawyers. This is a theme that has often played out in some of the most dangerous OLC opinions, where it views itself as a court and will take its own past writing as sort of a foundation to then push the envelope further. This only goes in one direction, right? And that’s to expand presidential power. I’m not aware of examples where the OLC became more and more restrictive of presidential power over time. That is always a red flag for me when I’m reading an OLC opinion. If they’re just citing themselves, I’m skeptical.

Another thing that stood out to me is the Nixon-era roots of the PRA, which was a slightly different statute, and then it was expanded in 1978 during the Carter administration, but there was a Supreme Court case about the Nixon-era predecessor that came down pretty resoundingly on Congress’ side. The OLC does a strange thing here where they try to wave this away by saying, Oh, well, here context matters. This was about Nixon and Watergate. Obviously in that context, a court may say that Congress can do this, but that has no bearing on today.

But the rest of the opinion is making these sweeping conclusions about how this law is completely beyond the bounds of Congress’ power to act, and it can’t both be true that context matters and that Congress has no power to pass this law, full stop. I think there is reason to be deeply suspicious of what the OLC is doing here.

One particularly striking line of the OLC’s opinion says, “The PRA exceeds oversight power because it serves no identifiable and valid legislative purpose. Congress cannot preserve presidential records merely for the sake of posterity.” Does it really have the authority to make such a sweeping claim?

The short answer is, no, they don’t. The OLC has the power to opine on whatever the OLC wants to opine on, but it’s just that; it’s an opinion. The executive branch likes to treat the OLC’s written opinions as if they were coming from a court, but in reality, they are just what some lawyers who work at the Justice Department happen to think. If someone were to sue the administration over this issue, the Justice Department would probably take these arguments into court, sure, but it’s ultimately for a court to decide, and that’s what would give it actual legal weight.

Another alarming aspect of this opinion is that it really seems like it’s written with the Supreme Court in mind as its audience. It’s actually in the same paragraph as that line about legislative purpose. It says: “Just as Congress could not constitutionally invade the independence of the Supreme Court and expropriate the papers of the Chief Justice or Associate Justices, Congress cannot invade the independence of the President and expropriate the papers of the Chief Executive.”

That is presented as an obvious thing. I’m not at all convinced that that’s correct. Its persuasive power seems more aimed at appealing to the sensibilities of the justices who, one could assume, wouldn’t want to hand over their papers, more than a real legal argument. That raises further questions in my mind about the rigor of the legal analysis here.

Does this OLC opinion change if and how prior presidents’ records are released to the National Archives? 

I think it’s an open question, and an important one. Will the archives apply this new OLC logic to records it already has and stop producing them? I don’t think we know the answer to that, but one of the reasons why the OLC is so influential is its opinions are sort of treated as binding within the executive branch. I would be very curious to know right now what sort of conversations are happening, if any, between the National Archives and the Justice Department, and whether everyone is on board with this novel conclusion.

It’s impossible to ignore the fact that President Trump was indicted for mishandling classified documents just three years ago. Now that he’s been reelected, he’s basically changing the essence of the very law that was used against him, right?

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It is, like you say, hard to avoid drawing these connections. The specific issue in special counsel Jack Smith’s investigation was less the PRA itself than other laws about handling of specifically classified information, but obviously improper retention of documents has been a major theme. This request apparently came from the White House counsel, and one has to wonder why it was thinking about the constitutionality of this sort of utterly benign, seemingly noncontroversial statute.

Now that the OLC’s opinion is out there, what happens to the PRA? What risks does it pose?

At its core, the PRA is one of the most important ways that we get to look inside the presidency. It’s a big part of what enables scholars, the public, to access these documents about decisions that were made in the name of the American people. I think it also underscores what seems to me like it should be a pretty uncontroversial proposition, which is that the products of governing are ultimately the public’s. These are not for presidents to own or sell to profit off of. They are tangible artifacts of how our country is run in our name. To pull back from that, I think, would upend decades of settled practice and be a real step back for our collective understanding of the presidency.

Fred Kaplan

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The public has an expectation that someday we will have the ability to walk into a museum and see this stuff. If this memo and its conclusion stands, I wonder what this would look like in the future. This OLC opinion is part of a much bigger story of a concerted effort to break down any of the guardrails around the presidency—both those that were built in the post-Watergate era, but also more broadly to push back against really any restriction on what it can do. It is an extremely concerning trend, because I think it’s fundamentally at odds with the Constitution’s structure and purpose and it’s about harming America as well as our checks and balances.

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Elsewhere in Jurisprudence

• In this week’s Amicus, Dahlia Lithwick and Mark Joseph Stern bid farewell to Pam Bondi. President Trump’s handpicked attorney general finally hit the point of no return after royally botching the handling of the Epstein files and failing to secure lasting indictments against her boss’s enemies. Though she’s no longer a federal employee, Bondi still may be dragged to Congress to answer lawmakers’ questions about the Epstein files in just a few days. Dahlia and Mark also discuss the confusing 8–1 Supreme Court decision in Chiles v. Salazar that rules on the legality of conversion-therapy bans and what it means for LGBTQ+ youth and the First Amendment.

• In the Slate Plus bonus episode, Mark unpacks what went down during the birthright citizenship oral arguments at the Supreme Court with Evan Bernick, a co-author of a key amicus brief in the Barbara v. Trump case. They discuss Solicitor General John Sauer’s shockingly weak presentation and how most of the court’s conservative justices seemed highly suspicious of the government’s position against birthright citizenship.

• Friends of Slate Hila Keren and Luke Boso, professors of law at Southwestern Law School, explain how the Supreme Court’s decision in Chiles v. Salazar failed to consider the LGBTQ+ adolescents who stand to be impacted. In an 8–1 opinion that limited the scope of a Colorado law banning conversion therapy for minors, Keren and Boso argue the justices were too focused on protecting the freedoms of the therapist challenging the Colorado law. “It ignored the young patients who would be in her clinic, exposed to her speech, and susceptible to internalizing ideas that may scar them for life,” they wrote.

• Lizelle Gonzalez lives in Texas and was arrested for ending her own pregnancy, despite state law explicitly stating women won’t be prosecuted for seeking out an abortion. When Gonzalez was eventually released from jail, she sued the district attorney and other officials involved in her arrest. So far, she’s been losing in court, and Mary Ziegler, law professor and leading historian on the U.S. abortion debate, wrote in Slate that this isn’t entirely surprising: “False-arrest claims are notoriously hard to win. A plaintiff like Gonzalez needs to show that law enforcement lacked even probable cause for an arrest. That’s more than just innocence.” As Ziegler, explains, though, the effects of this qualified immunity could be devastating for pregnant women.

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