Jimmy Carter’s Ball and Chain

Is the Presidential Records Act constitutional? That’s the question after the partial release of the federal government’s justification for its Mar-a-Lago raid, itself prompted by alleged violations of the act. It’s a moment to weigh the validity of this measure, passed by the Democrats in the post-Watergate Congress and signed into law by President Carter. To date, the margins of this question have only been nibbled by President Trump and his lawyers.Before the law, White House “records were considered the President’s private property,” the Congressional Research Service reports. After its enactment, “presidential records are the property of the United States.” The law, a reaction to Watergate, found some justification in the Supreme Court’s reasoning in United States v. Nixon. That ruling eroded the blanket expectation that presidential papers were protected by executive privilege.The records law, the Congressional Research Service explains, dictates to the Commander-in-Chief how “information is controlled, accessed, and released during and after a President’s time in office.” The law interposes the head of the National Archives between the president and his or her papers, purportedly to provide “advice and assistance to the White House on records management practices upon request.”In fact, this official serves as a watchdog, scrutinizing the President for any potential violations of the records act. What if the President wishes to throw away a stray or unneeded memo or other extraneous file? That requires a report of the “intended disposal schedule” to two Congressional oversight committees, CRS says, and the endorsement of the Archivist, who can object if he “considers the identified records” to be “of special interest.”Heaven forfend if the President should accidentally breach any of the procedures and rules set forth by Congress in the records act. “In the event of potentially unlawful removal or destruction of government records,” CRS says, the records act “requires the head of a federal agency to notify the Archivist, who initiates action with the Attorney General for the possible recovery of such records.” Hence, the raid at Mar-a-Lago.It is astounding that any president would voluntarily attach such a legalistic ball and chain on the leg of the sole person to whom the Constitution grants the executive power of the United States. Then again, too, it was Mr. Carter who, in 1978, signed the law aimed at binding his successors. Not only did Mr. Carter sign the law, which went into effect in January 1981, but he and Vice President Mondale agreed to abide by it until then.The law would “make the Presidency a more open institution,” Mr. Carter mumbled at the signing. He hailed it for “making sure that our Government is not above the law.” More accurately, it placed the President under the supervision of the Congress. Mr. Carter even thanked the members of Congress who devised this breach in separated powers. To Hell with the Constitution. It’s weirder than his decision to give away the Panama Canal.For an understanding of the right — or lack thereof — of the Congress to obtain the President’s papers, look no further than George Washington. In 1796, the House demanded access to his papers relating to the Jay Treaty negotiations. He reasoned that “the nature of foreign negotiations requires caution; and their success must often depend on secrecy.” He told the solons “the duty of my office … forbids a compliance with your request.” Washington’s wisdom shaped the idea of executive privilege, a hallmark of separated powers and the constitutional presidency. Later, when President Jackson was queried by the Senate over his dispute with the Bank of the United States, he said “I have yet to learn under what constitutional authority that branch of the Legislature has a right to require of me an account of any communication.”Which brings us back to the Presidential Records Act. Legal sages are starting to question whether the law is being followed faithfully in the pursuit of Mr. Trump. That’s a matter of statutory interpretation. The bigger question is the constitutionality of the law under which General Garland and the National Archives are maneuvering against the former president. This struggle might yet get down to this slab of American bedrock.

Jimmy Carter’s Ball and Chain

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