The People v. the Shredder-in-Chief
An Orwellian project that must be stopped.
Editor’s Note: Part I of this piece laid out the legal landscape: a 52-page OLC opinion declaring the Presidential Records Act unconstitutional, contradicting a 7-2 Supreme Court decision, and green-lighting the shredders. This part takes up the legal effort to stop it, the obstacles that effort will encounter, and the monumental stakes of the fight.
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Earlier this week, two organizations filed suit in the United States District Court for the District of Columbia to stop the Trump Administration from treating the Presidential Records Act (PRA) as a dead letter. The case came in the wake of an opinion from the Office of Legal Counsel (OLC) that concluded that the PRA is unconstitutional, contradicting a 7-2 Supreme Court decision without citing a single judicial precedent, and giving a green light to Trump and others in his ambit to alter or destroy presidential records.
The plaintiffs are the American Historical Association, the largest membership organization of historians in the world, and American Oversight, a nonpartisan nonprofit government watchdog that uses FOIA requests and litigation to expose official misconduct
The lawsuit seeks a declaration affirming that the PRA is constitutional and that the OLC opinion is unlawful. The plaintiffs also seek an order compelling the National Archives and Records Administration (NARA) to resume its obligations under the Act. And in what may be the most pointed request of all, they seek an injunction against Trump personally, requiring him—after leaving office—to turn over any presidential records in his possession to NARA, and requiring the other defendants to disclose to the court any known instances in which Trump destroys records or converts them for his personal use. That last piece is a direct shot at Trump’s Mar-a-Lago mischief.
The case has been assigned to U.S. District Judge Beryl Howell. That’s a heartening draw for the plaintiffs. Howell is a widely respected former chief judge of the D.C. District Court with a strong track record of ruling against executive overreach.
If Howell reaches the substance of the dispute, the legal argument is straightforward: Nixon v. Administrator of General Services is controlling Supreme Court precedent, OLC cannot simply declare the Court wrong, and the defendants must comply with the Act. Both the district court and the court of appeals are bound by the Administrator of General Services precedent.
On the merits, the ultimate wild card is the U.S. Supreme Court, which has the power, and possibly the inclination, to adopt the wild-eyed OLC opinion as the new law of the land. But that’s a fairly remote prospect, in both likelihood and time. There are two more immediate serious obstacles casting shadows on the lawsuit.
