Seven Fights Over Who Holds the Government

Last week, in a federal appeals court in Washington, government lawyers argued that papers created inside the White House belong to the president personally, and that the law requiring them to be saved for history no longer binds him. That law is the Presidential Records Act, passed after Watergate so a presidency's papers would belong to the country. Judge Patricia Millett had a question.

Can the president then offer on eBay to sell them, all of our national security secrets to the highest bidder? — Patricia Millett

The question did not need an answer. And the position was not new to that courtroom. By April the administration had already put the same claim on paper, in its own memorandum. The Office of Legal Counsel, the Justice Department office that advises the president on what the law permits, declared the Presidential Records Act unconstitutional and said the president need not obey it ^[1]. The memo's author, Assistant Attorney General T. Elliot Gaiser, wrote:

It exceeds any preservation power because Congress cannot preserve presidential records merely for the sake of posterity. — T. Elliot Gaiser

It was written for a president who had just fired the national archivist, the official whose job is to keep those records, and put an acting one in the post ^[1]. In July the same logic reached the filing cabinets. The Justice Department missed a court's deadline to release the sealed files of the Jeffrey Epstein case, then appealed to keep them shut ^[2]. The acting attorney general, Todd Blanche, who was the president's personal defense lawyer before taking the job, said:

We have released everything … We are not sitting on a single piece of paper. Nothing that should be released. — Todd Blanche

Across the building, the same department was opening what it chose to open. It declassified Russia-investigation records that damaged the president's political opponents, releasing files that hurt rivals even as others stayed sealed ^[3]. In October the shield stretched over a building. The president invoked executive privilege, the power to withhold records and testimony long reserved for the White House's inner workings, to keep private the details of how he runs the John F. Kennedy Center for the Performing Arts ^[4]. He chairs it; he appointed himself. In the same fight, the Justice Department argued that his management of the center was an act of his official office as president. The two positions sit awkwardly together, and the administration did not pause to reconcile them. Two months earlier, in August, the Office of Legal Counsel had issued a second memo, extending the same shield over the president's private business advisers so that they could refuse subpoenas from Congress ^[5]. The border was being asserted from both directions at once: pulled inward over a nonprofit the president runs personally, and outward over the people he does business with. At the far end of the line sits the demand that opened it. In December the White House told the Smithsonian Institution to turn over its curatorial manuals, gallery labels, and exhibition plans by a January deadline, or lose the federal funding that pays for most of its budget ^[6]. Deciding what a museum label says was treated as the president's business to review. Then the office. This month a federal court restored the United States attorney for the Western District of Washington, a federal prosecutor, after the president fired him. The president fired him again ^[7]. In at least four of these fights, a court has now answered. A district judge has ordered the White House to keep preserving its records ^[8]. A judge ordered the Epstein files released ^[2]. A judge blocked the Kennedy Center closure and ordered the president's name off the facade ^[9]. And a court restored the prosecutor the president had fired ^[7]. Twice the administration answered back: it appealed the Epstein ruling, and it fired the prosecutor a second time ^[2][7]. The last of those standoffs is where the contest now sits. The order restoring the prosecutor and the second firing both remain in force, side by side, and the president's critics are urging the Supreme Court to step in ^[7].