Last week, the Trump administration proudly published two pieces of news which, at first sight, could not be more different: one a dry 52-page legal opinion from the justice department declaring the 1978 Presidential Records Act unconstitutional; the other an AI-generated clip of Trump’s planned “presidential library”, a waterfront skyscraper in Miami. Both sent the same message, though: the legal opinion – authored by a jurist heavily involved in attempts to overturn the 2020 election – leaves Trump free to destroy evidence of wrongdoing; the building envisaged for Biscayne Bay appears to be less of a library than a hotel complex. As the president reassured anyone suspecting that he might fill a glitzy edifice with boring papers and books: “I don’t believe in building libraries or museums.” These are clear signals about wanting to avoid accountability; it is not too early to devise strategies to counter politically motivated amnesia.
In what jurists widely saw as an opinion of breathtakingly bad faith, T Elliot Gaiser, the Ohio-based election denier and a former clerk of Samuel Alito, asserted that Congress had no right to ask the president to preserve records; the imperative to create and keep documents served “no legislative purpose” and could “impede” the day-to-day “performance” of the head of the executive. The act had been crafted in the wake of the misdeeds of Richard Nixon, who had wanted discretion over which of his tapes and papers to destroy; in response, Congress first passed the Presidential Recordings and Materials Preservation Act in 1974, making the government take custody of Nixon’s materials. Nixon sued; the supreme court rejected the view that the separation of powers had been violated; the justices also took the occasion to affirm the importance of “the American people’s ability to reconstruct and come to terms with their history”. Congress then passed the more general Presidential Records Act, which no one up until Trump appeared to have experienced as remotely burdensome.
