(NEW YORK) — The White House’s new policy for preserving presidential records risks allowing the Trump administration to “unlawfully destroy important records,” a group of Senate Democrats warned in a letter to the White House Counsel on Wednesday.
Thirteen Senate Democrats are seeking assurances from the White House that it would continue to preserve presidential records, saying they had grown “deeply concerned” with recent steps the Trump administration had taken to loosen rules dictating document retention.
The Democrats’ missive comes after the Justice Department’s Office of Legal Counsel (OLC) wrote an opinion this month that deemed the Presidential Records Act — a Watergate-era law that changed the legal ownership of presidential records from private to public — to be unconstitutional and “untethered from any valid and identifiable legislative purpose.”
One day after the opinion was issued, White House Counsel David Warrington issued new guidance for White House staffers to adopt new document retention policies based on the DOJ’s new determination about the legality of the Presidential Records Act.
“The 1978 law is a significant departure from historical practice. For 200 years the presidency existed without the legislative branch invading the rights of the executive branch,” Warrington said in a memo that was later included in a court filing.
Led by Sen. Adam Schiff of California, the Democrats wrote to White House Counsel David Warrington that they feared “the President and his staff” will use the OLC option to “unlawfully destroy important records covered by the [Presidential Records Act].”
Abigail Jackson, a White House spokesperson, said in a statement that the Democrats’ letter reflects “a fundamental misunderstanding of the Administration’s policy.”
“The new White House records retention policy makes it clear that important records will be preserved,” Jackson added.
The senators, in their letter, alluded to what they characterized as President Donald Trump’s “unlawful personal retention and mismanagement of classified documents” in requesting a briefing from White House officials on their “records management procedures” at some point before the end of his term. Trump was indicted after his first term for allegedly storing classified records at his Mar-a-Lago estate and obstructing investigators, though the case was dismissed over U.S. District Judge Aileen Cannon’s concerns about the appointment of special counsel Jack Smith.
Drafted in the wake of the Watergate scandal, the Presidential Records Act was passed in 1978 to ensure the preservation of presidential records. Every president since Ronald Reagan has been subject to the law, which places the National Archives and Records Administration in control of the official records — such as emails, phone records, and other documentary material created by the president and his staff in the course of their duties — once the president leaves office.
Under the PRA, which is overseen by Congress, former presidents have up to 12 years after leaving office to turn over all their presidential records.
During President Trump’s current term, his administration has moved to unwind record retention protocols. Earlier this month, Assistant Attorney General T. Elliot Gaiser wrote an opinion that would upend the established process for ensuring the public ownership of presidential records, arguing that “the PRA exceeds the oversight power [of Congress] because it serves no identifiable and valid legislative purpose.”
With three years left in Trump’s second term, his Department of Justice now says the president “need not further comply” with the law governing the handover of his presidential records once he leaves office.
The day after the publication of the Justice Department’s opinion, Warrington issued new guidance for the Executive Office of the President regarding the preserve of records going forward. While the memo said that staff could use policies developed under the PRA, Warrington said the new policy would cover the retention of both classified and unclassified material going forward.
In their letter to Warrington on Wednesday, the senators asserted that administration “does not have the authority to override Supreme Court rulings or unilaterally overturn laws passed by Congress.”
Within a week of the OLC opinion and new White House guidance, the country’s largest group of a historians and a watchdog organization brought a lawsuit seeking to force the Trump administration to comply with the PRA.
“The Executive Branch has nullified the determinations of the other two branches of government so that the President may claim these official government records to be his own,” the lawsuit said.
Lawyers with the Department of Justice have defended the policy in court filings, arguing the PRA is an “unconstitutional and ahistorical imposition on presidential autonomy.”
As part of the lawsuit, the Trump administration released the new White House guidance on document retention. The Director of Archival Operations at the National Archives, meanwhile, said that the agency continues to “preserve all Presidential records in its custody” and plans to continue processing requests to access those records.
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