Wednesday, October 20, 2021

The Ghost of Nixon

Nixon sued the Administrator of General Services seeking to enforce an agreement he made with the GSA before he resigned. The agreement covered his personal and Presidential records. In response to this agreement Congress passed the Presidential Recordings and Materials Preservation Act. Essentially Nixon v. GSA held the Act to be constitutional and upheld its enforcement. The case is bandied about now as denying Nixon executive privilege over the records. But Nixon was trying to preserve his agreement, and the Court found Congress had overridden it. The summary of the case, at least, never mentions “executive privilege”

The privilege for an ex-president was actually decided in U.S. v. Nixon. Nixon v. GSA does, however, discuss at length the constitutionality if the PRMPA. I can find several commentaries on the case that reference “executive privilege,” but if that issue comes up as “presidential privilege”in the opinion, and is dealt with almost summarily.,  Trump’s lawyers say Nixon found ex-presidents have a strong claim on the privilege. That simply isn’t true.

In 1978 Congress passed the Presidential Records Act, making all records of the Presidency public records held by the National Archives, (as did the previous act), and giving the National Archives authority to promulgate regulations related to the act, such as the one giving Trump 30 days to respond to the decision of the current POTUS to release the records.  That law has applied to Presidents since Reagan.

Trump’s challenge (such as it is) is the first by a former President since Nixon. That’s why Nixon v GSA even gets mentioned now. But that case upheld the first law by Congress to control presidential records, and no former President has challenged the superseding PRA since its passage. The constitutional challenge by Trump is weak indeed. And a grueling legal fight? Not if the DOJ does what it’s doing in the Texas SB8 suit, and goes directly to the Supreme Court (which has accepted that appeal).

The privilege for an ex-president was actually decided in U.S. v. Nixon, as the majority said in Nixon v. GSA:

The appellant may legitimately assert the Presidential privilege, of course, only as to those materials whose contents fall within the scope of the privilege recognized in United States v. Nixon, supra. In that case, the Court held that the privilege is limited to communications "in performance of [a President's] responsibilities," 418 U.S. at 418 U. S. 711, "of his office," id. at 418 U. S. 713, and made "in the process of shaping policies and making decisions," id. at 418 U. S. 708. Of the estimated 42 million pages of documents and 880 tape recordings whose custody is at stake, the District Court concluded that the appellant's claim of Presidential privilege could apply, at most, to the 200,000 items with which the appellant was personally familiar.

For clarity, Nixon is the appellant there.  The privilege, though, is a narrow one, and Trump is not arguing for a narrow application. Again, you get what you ask for. There are limitations that Trump is not interested in. Asking for too much will likely cost him everything.

How appropriate.

The lawyers arguing there are Constitutional issues here are doing so because there are no cases on the validity or limits of the PRA.  There are no cases that I know of, at least at the Supreme Court level, finding the acts of Congress to control and regulate Presidential records are unconstitutional. There is some dicta in Nixon v GSA that might open interesting avenues, but the Court isn’t likely to seek those out if Trump doesn’t raise them.

And so far, he hasn’t. He’s not even showing signs of understanding the possible issues.

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