During
his
first
term,
President
Trump
routinely
tore
up
offical
documents,
forcing
archivists
to
meticulously
tape
them
together
to
comply
with
the
Presidential
Records
Act.
There
were
even
reports
that
he
clogged
up
toilets
in
the
White
House
with
shredded
papers
he
hoped
to
disappear
forever.
This
time
around,
he’s
taking
a
different
approach.
Instead
of
quietly
defying
the
law,
he
ordered
his
advisors
to
dummy
up
an
opinion
saying
that,
actually,
the
PRA
is
unconstitutional.
This
requires
a
not
inconsiderable
amount
of
chutzpah,
since
the
Supreme
Court
said
almost
50
years
ago
that
it
is.
And
yesterday,
Judge
John
Bates
of
the
US
District
Court
in
DC
said
it
again,
in
a
meticulous
opinion
that
opened
with
quotes
from
George
Orwell
and
Shakespeare.
The
injunction
takes
effect
May
26th
and
covers
White
House
staff,
though
not
the
president
or
vice
president
—
which
is
a
gap
you
could
drive
a
very
classified
Signal
chat
through.
The
past
is
indeed
prologue.
Personnel
is
policy
On
April
Fools’
Day,
the
Office
of
Legal
Counsel
published
a
memo
opining
that
“The
Presidential
Records
Act
is
unconstitutional
because
it
exceeds
Congress’s
enumerated
and
implied
powers
and
aggrandizes
the
Legislative
Branch
at
the
expense
of
the
constitutional
independence
and
autonomy
of
the
Executive.”
The
memo’s
author,
a
36-year-old
right-wing
lawyer
named
T.
Elliot
Gaiser,
was
tapped
to
retcon
a
legal
justification
for
the
White
House
staff
to
keep
on
conducting
business
via
disappearing
messaging
apps
and
personal
emails.
This
task
was
somewhat
difficult
thanks
to
the
Supreme
Court,
which
upheld
a
materially
identical
statute
in
1977
when
Nixon
sued
the
GSA
to
avoid
having
to
turn
over
his
tapes.
But,
as
a
former
clerk
for
Justice
Alito,
Gaiser
was
up
to
the
job.
He
simply
declared
that
the
Supreme
Court
was
“wrong,”
and
“mistaken,”
and
“failed
to
appreciate
the
Article
II
consequences”
of
its
own
ruling.
He
also
made
a
tortured
argument
about
Trump
v.
Mazars,
the
2020
Supreme
Court
decision
involving
congressional
subpoenas
for
Trump’s
personal
financial
records.
The
Court
held
that
subpoenas
of
the
president
must
be
related
to
a
legitimate
legislative
purpose
and
narrowly
tailored
to
avoid
partisan
harassment.
Of
course,
presidential
records
are
definitionally
not
personal
records,
and
the
PRA
is
a
law,
not
a
subpoena.
But
Gaiser
had
a
job
to
do,
so
he
shouted
Mazars!
34
times
and
hoped
for
the
best.
And
with
all
that
shouting,
he
plum
forgot
to
mention
the
Property
Clause
—
Congress’s
plenary
power
to
regulate
federal
property
—
which
the
DOJ
relied
on
in
1977
when
it
successfully
defended
the
predecessor
statute
in
Nixon
v.
GSA.
Hey,
Susie
Wiles!
You
up?
Gaiser’s
memo
was
good
enough
for
White
House
Counsel
David
Warrington,
and
the
next
day
he
fired
off
an
all-staff
memo
announcing
that
the
PRA
was
now
unconstitutional.
He
suggested
that
White
House
employees
“should”
preserve
their
comms,
which
“may
be
relevant
to
ongoing
or
future
litigation.”
As
for
text
messages
…
ehhhhh:
Under
the
PRA,
no
presidential
administration
required
EOP
staff
to
transcribe
phone
calls,
meetings,
or
informal
discussions,
even
though
the
broad
and
unconstitutional
text
of
the
PRA
certainly
suggests
that
this
would
be
required.
Complying
with
such
a
requirement
would
be
immensely
time
consuming
and
costly.
Similarly,
as
text
messaging
becomes
more
akin
to
speaking
every
day,
preserving
all
text
messages
would
create
an
enormous
technological
burden
while
chilling
the
ability
of
presidential
advisors
to
provide
candid
advice.
Text
messages
should
only
be
preserved
when
they
are
the
sole
record
of
official
decision-making,
government
action,
or
contain
unique
information
not
available
elsewhere.
Furthermore,
staff
is
encouraged
to
ensure
that
any
decision-making,
government
action,
or
unique
information
is
memorialized
in
a
more
accessible
format,
such
as
an
or
memorandum.
Text
messages
reflecting
personal
conversations,
workplace
gossip,
ministerial
tasks
or
other
workplace
minutiae
(e.g.,
“call
me”,
“what
room
for
the
meeting”,
“there
is
a
typo
in
the
first
line
of
the
memo”)
do
not
need
to
be
preserved.
Translation:
Set
all
messages
to
self-destruct
in
seven
days,
Elliot
says
it’s
cool.
Not
so
fast,
fellas
On
April
6th,
the
American
Historical
Association
and
the
watchdog
group
American
Oversight
(a
frequent
FOIA
litigant)
sued
to
block
implementation
of
the
OLC
memo
and
force
the
National
Archives
to
collect
records
in
accordance
with
the
PRA.
Citing
the
administration’s
flat
refusal
to
stipulate
to
basic
preservation
measures
while
the
case
was
pending,
they
moved
for
a
preliminary
injunction
to
prevent
the
permanent
destruction
of
White
House
documents
that
belong
to
the
American
people.
The
case
was
assigned
to
Judge
John
Bates,
a
George
W.
Bush
appointee,
who’s
been
on
the
bench
long
enough
that
he
remembers
when
the
White
House
Counsel
and
OLC
at
least
pretended
to
be
doing
real
law.
He
did
not
hide
his
disdain
for
a
government
that
seeks
to
operate
in
secret.
“While
the
presidency
is
a
singularly
important
institution,
that
gravity
does
not
free
it
from
modest
constraint.
Quite
the
opposite,”
he
wrote.
“Each
branch
of
government
derives
its
authority
from
the
trust
placed
in
it
by
the
People,
and
Congress
has
validly
determined
that
this
Act
helps
to
maintain
that
trust
by
shining
some
light
on
the
activities
of
the
President
and
his
aides.”
Warrington
and
Gaiser
caught
substantial
judicial
side-eye
as
well,
as
the
court
sniffed
that
“it
is
not
for
this
Court,
OLC,
or
the
White
House
to
second
guess
Congress’s
lawful
determination—made
pursuant
to
at
least
two
different
enumerated
powers—that
citizens
ought
eventually
to
have
access
to
these
records
of
presidential
activities
carried
out
in
their
name.”
Madness
lies
It’s
worth
pausing
to
note
that
the
man
who
spent
years
braying
that
Hillary
Clinton
should
go
to
email
jail
for
using
a
private
server
is
now
arguing
that
his
minions
have
a
constitutional
right
to
conduct
government
business
on
self-destructing
messaging
apps,
and
that
any
law
requiring
them
to
preserve
those
messages
is
an
unconstitutional
affront
to
executive
power.
Anyway,
here’s
an
official
White
House
video
congratulating
Trump
on
“the
most
transparent
administration
in
history.”
Irony
is
dead.
Liz
Dye produces
the
Law
and
Chaos Substack and podcast. You
can
subscribe
by
clicking
the
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