For months, questions have swirled about whether Trump can legally delete his tweets, or if doing so violates the Presidential Records Act. It’s the same thing with deleted secret recordings, or anything else that deals with government record-keeping. Now it seems that, in a recent court filing, Trump’s Justice Department argues that judicial reviews of these things are prohibited.
In other words, they say that even if he is breaking the law by deleting tweets, recordings and other records, the courts don’t have the right to review it (except maybe under certain seemingly very special circumstances). Literally. That’s literally what they’re saying:
“Courts cannot review the President’s compliance with the Presidential Records Act.”
Their basis for such a claim? A case stemming from 1991 that went to the D.C. Circuit Court, which holds that private, outside groups can’t sue the president for failure to comply with the PRA. The Justice Department argues that the plaintiffs—a watchdog group known as Citizens for Responsibility and Ethics in Washington, D.C.—have no legal standing on which to sue:
“[T]he D.C. Circuit held in Armstrong that private litigants may not bring suit to challenge the President’s compliance with the PRA. While the D.C. Circuit subsequently held that courts hearing FOIA cases may review the President’s PRA guidelines to ensure that he does not improperly treat agency records subject to FOIA as though they were instead presidential records subject to the PRA, … D.C. Circuit law does not permit judicial review of whether the President is properly managing and preserving those records that are in fact subject to the PRA.”
They also drop this little gem:
“[T]he president is generally precluded from disposing of presidential records unless he determines that the records ‘no longer have administrative, historical, informational, or evidentiary value’ and obtains the written views of the Archivist of the United States… the PRA accords the President virtually complete control over his records during his term of office.”
Later on, they explain again that the courts have the ability to review the guidelines for what is and is not a presidential record. That’s to ensure that records not subject to the PRA aren’t designated presidential records. Here’s the thing: The core of this lawsuit involves that very question. Are Trump’s tweets, recorded conversations (secret or otherwise), etc., presidential records or not? If the courts are allowed to review guidelines, how can they not review Trump’s compliance with those guidelines? The DOJ appears to be arguing that Trump, and Trump alone, can determine what is and is not a presidential record subject to the PRA.
The PRA was passed in 1978 to prevent what happened with Watergate from ever happening again. If anybody is looking to repeat Watergate and worse, it’s Dear Leader here. If Trump (and every president) has the right to destroy records as he sees fit, then what is the point of that law?
But even if this is all true and CREW does not have standing to sue, we still have an administration arguing that even if Trump is breaking the law by destroying certain records, there is nothing the courts can do about it because they don’t have the jurisdiction to review his compliance with the PRA. Meaning Trump can decide what to preserve and what not to preserve pretty much with impunity until the National Archivist steps in and says something to Congress about it.
Featured image via Chip Somodevilla/Getty Images
