Trump Refights the “War” That Congress and the Burger Court “Waged” Against President Nixon’s Tapes

In October, I wrote a column in Civitas Outlook about how President Trump was refighting the wars that the Watergate Congress waged against President Nixon. That piece concerned the spending power. In a follow-up column, I write about a recent opinion from the Office of Legal Counsel concerning the Presidential Records Act. Here too, Trump continues that fight.

In our current chaotic legal order, it is easy to get lost amid short-term controversies that will likely not endure beyond the present moment. Other far more enduring issues, however, often fly below the radar and garner little interest. Specifically, tensions between the legislative and executive departments persist regardless of which political party is in power. In modern American history, the greatest realignment of powers occurred in the wake of Watergate. Congress responded to President Nixon’s actions by imposing greater oversight over the executive branch and the political process more generally. Presidents Gerald Ford and Jimmy Carter acquiesced to these restrictions. And the Burger Court, stacked with four Nixon appointees, upheld these expansions of legislative authority. In a Civitas Outlook essay from October, I explored how President Trump was refighting the “war” that Congress and the Burger Court “waged” against President Nixon in the context of presidential spending. The latest front in this war centers on presidential records.

Most law students learn that the Supreme Court ordered President Nixon to turn over his secret Oval Office recordings to the Watergate Special Prosecutor. United States v. Nixon (1974) directly led to the president’s resignation two weeks later. But far fewer students study the fights over the recordings after Nixon resigned. Congress asserted control over all of Nixon’s records and those of all future Presidents. However, a recent opinion from the Office of Legal Counsel argues that these five-decade-old laws were unconstitutional. Going forward, Trump will assert his own authority over his own papers, notwithstanding how the Watergate Congress tried to hamstring Nixon.

From the conclusion:

This opinion, by itself, has no immediate legal effect. Again, the PRA only has a meaningful effect after a President leaves office. (Unsurprisingly, there is already litigation afoot to try to halt this policy.) But the upshot of this opinion is that President Trump and his administration will not feel compelled to comply with the PRA. He will keep whichever documents he preserves, perhaps to be maintained at the future skyscraper Presidential Library in downtown Miami. It will turn to a future administration to decide whether to launch a Jack Smith redux and prosecute a predecessor President. The better course would be for future administrations to agree that PRA is unconstitutional and let these matters go. OLC’s opinion will frustrate, rather than extend, the dangerous cycle of presidential lawfare.