Former president Donald Trump has filed a lawsuit to block release of speech drafts, call logs and handwritten notes regarding the 6 January Capitol Clash. Trump is seeking to prohibit the National Archives from delivering those records to a congressional committee investigating the events of January 6th. President Joe Biden has refused to invoke executive privilege to prevent the disclosure of Trump’s record. A federal judge ruled that the Trump administration documents must be delivered to congressional investigators, but on Thursday a federal appeals court temporarily blocked their release until further court proceedings.
The legal issue is murkier than most media coverage recognises. As University of Virginia law professor Saikrishna Prakash pointed out in Sunday’s Washington Post, the Supreme Court has recognised that former presidents can assert executive privilege regarding their papers. Some of the hubbub over these cases focuses myopically on the comparative virtue or venality of Trump versus Biden, but the real scoundrel in this episode is the Presidential Records Act, a law that entitles presidents and former presidents to blindfold the American people practically in perpetuity.
The Presidential Records Act of 1978 was enacted after former president Richard Nixon tried to claim that his secret Oval Office tapes were his personal property. The 1978 law declared that “the United States shall reserve and retain complete ownership, possession and control of presidential records.” But this law has more loopholes than a congressional ethics reform bill.
“Two months after George W Bush became president, his White House counsel, Alberto Gonzales, issued the first of several orders delaying the release of 68,000 records from Reagan’s administration”
The 1978 law mandated that the unclassified papers of a president be routinely released 12 years after the president’s term ends. But White House lawyers have perennially found pretexts to make a mockery of that provision. Two months after George W Bush became president, his White House counsel, Alberto Gonzales, issued the first of several orders delaying the release of 68,000 records from Reagan’s administration that archivists at the Reagan Library had already confirmed did not threaten national security or violate personal privacy. Those records could have profoundly embarrassed Bush’s father, George H W Bush, who was Reagan’s vice president and the target of a Special Counsel.
