Under President Donald Trump, the Department of Justice is attacking the real enemy: recordkeeping requirements.
Yes, Trump just got his pet at the Office of Legal Counsel, T. Elliot Gaiser, to whip up a very aggro opinion saying that the Presidential Records Act is unconstitutional.
Such a great look to have a presidential appointee just baldly declaring that the law requiring the president to keep records is unconstitutional because Congress has no right to tell the president to keep records. It intrudes on his authority to make him do so, and there’s no legislative purpose, and it's burdensome, and on and on and on.
This sort of thing was inevitable once the DOJ became fully captured by Trump. Not just that he would begin treating the OLC like his own personal legal opinion factory, there to spit out whatever he likes, regardless of actual law, but that he would go after the PRA specifically.
The PRA was enacted in the wake of Watergate and requires that presidential and vice-presidential records be available to the public. So, the president and vice president have to maintain records created during their tenure and leave them behind when they go, at which point they are transferred to the archivist.
During his first term, Trump routinely violated the PRA by tearing up and throwing away records. Upon leaving office after his first term, he insisted that the PRA meant he could keep whatever presidential records he wanted, forever. You will note that is pretty much literally the opposite of what the law says.
Related | Trump says executive privilege for me—but not for thee
The only reason Trump wasn’t indicted for violating the PRA over squirreling away classified documents in his fancy bathroom at Mar-a-Lago is that the PRA is a civil, not criminal, statute. So he was indicted under different laws for that little escapade until Aileen Cannon magicked it away for him.
But of course, the PRA still had to go—and Gaiser was more than eager to do so.
Sure, the Supreme Court already ruled in Nixon v. Administrator of General Services that the PRA was not unconstitutional and did not infringe on Nixon’s rights, but per Gaiser, it’s totally different for… reasons.
Gaiser is a handy guy to have at the OLC if you are Donald Trump. Gaiser is a true, true believer. A 2012 Hillsdale College graduate who clerked for Justice Samuel Alito, Gaiser was part of Trump’s 2020 campaign team. During the investigations into January 6, Kayleigh McEnany named Gaiser as someone who was really trusted on “matters of election integrity” and that Gaiser had advised that the vice president had a “substantive” role in certifying elections.
Translation: Gaiser thought it would be totally legal for Mike Pence to refuse to certify an election if doing so would make Trump sad. Keen legal mind there, dude.
Speaking of keen legal minds, it probably bears mentioning that Gaiser clerked for Alito beginning in the fall of 2021. As in, after being a part of Trump’s merry band of election deniers and insurrection enthusiasts.
Besides throwing out a major recordkeeping act, Gaiser was also happy to whip up a little opinion saying that it’s unconstitutional to ban sending firearms through the U.S. mail. He was also eager to crank out dozens of pages striking down as unconstitutional nearly all programs the Department of Education managed that helped increase school enrollment and achievement for non-white students.
Dude probably waited his whole life for that, let’s be honest.
Gaiser’s opinions are denser and longer, but at root, they also hold the exact same legal authority as Trump’s executive orders do: absolutely none. If Trump wants the PRA to go away, he can get Congress to change the law, or he can bring a legal challenge to the law, perhaps, in his personal capacity. It isn’t like he has any qualms about maintaining a robust stack of private lawsuits while president.
Related | How many personal lawsuits does Trump have going right now, anyway?
This isn’t just about Trump not wanting the public to see what he’s doing. It’s about his belief that everything is his—the White House, the Kennedy Center, you name it. In his mind, his records belong to him, not us. He can toss or keep them as he pleases, but they’re not ours.
It’s the exact opposite of democracy.
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