Trump Library

(The Guardian; Peščanik.net, translation: Đ. Tomić)

The Trump administration has recently released two seemingly unrelated pieces of news. The first concerns a terse 52-page legal opinion from the Justice Department declaring the Presidential Records Act of 1978 unconstitutional. The second is an AI-generated video presentation of Trump's skyscraper-shaped presidential library on the Miami waterfront.

In both cases, the message is the same: the legal opinion - penned by a lawyer who distinguished himself by trying to change the results of the 2020 election - gives Trump the freedom to destroy evidence of his wrongdoing, and the imagined building on Biscayne Bay looks more like a Las Vegas hotel than a library. Those who thought the glittering skyscraper would be filled with boring papers and books were reassured by the president, saying: "I don't believe in building libraries and museums. It will probably be a hotel." Both pieces of news clearly indicate the president's desire to circumvent presidential responsibilities. So now is the time to devise a strategy to prevent this politically motivated amnesia.

In the legal opinion, which most legal scholars have described as an interpretation crafted with astonishingly bad intentions, T. Elliot Gaiser of Ohio, a former staffer for Samuel Alito and known for his role in the election denial, argues that Congress has no right to require the president to preserve presidential records. The duty to create and permanently preserve records has no clear “statutory purpose” and “interferes with the day-to-day operations” of the executive branch. The law was passed after revelations of wrongdoing by President Richard Nixon, who had claimed for himself the discretion to decide what records and recordings to preserve and what to destroy.

Congress responded by passing the first Presidential Records and Archives Preservation Act of 1974, which gave the government custody of Nixon’s papers. Nixon sued, but the Supreme Court rejected his lawyers’ argument that the law violated the separation of powers. The justices took the opportunity to emphasize the importance of “the American people having the ability to access and reconstruct their history.” Congress then passed an even more comprehensive Presidential Records Act, which no president before Trump has challenged.

Trump's carelessness in handling documents, to put it mildly, is nothing new. After his first term, he took documents from the White House with him to Florida. Ironically, Jack Smith's report on the matter, which contains a draft indictment of 40 counts of unauthorized handling of classified documents, will never be released thanks to Trump's infamous judge Aileen Cannon. Last year, Trump fired the archivist of the United States, the first woman to hold the position, and announced that her duties would henceforth be performed by Marco Rubio (who probably has no better job), assisted by none other than the chairman of the Richard Nixon Foundation.

The possibility of losing documents is not just a concern for historiographical pedants. Their disappearance calls into question our right to hold government officials accountable. Trump’s sycophants celebrate “the most transparent administration in history,” when from day one of his second term, the only thing that has been transparent is his willingness to pardon anyone who commits illegal acts for him. The most serious perpetrators of the January 6, 2021 riots were pardoned. Investigators hired to establish the facts of the riot have been removed from the FBI and the Department of Justice. The database of charges and videos has also disappeared from the Department of Justice website.

Trump, in this term, wants to get revenge on everyone who has wronged him (not to mention the many powerful actors who saw his return as an opportunity to promote their own agendas, from the owners of dirty industries to crypto influencers to white supremacists). That is why there is some perverse logic in his decision to build a hotel instead of a presidential library with a gilded monument to himself in supernatural size and a Boeing 747 parked in the glass lobby. This is perhaps a true representation of the achievements of his two terms.

It looks like he will continue to grant generous pardons to his lackeys. Some media outlets reported that Homeland Security Department Chief of Staff Corey Lewandowski boasted that he could do whatever he wanted because Trump would always pardon him (he later denied the claim). We don’t know if Christy Noem and Pam Bondi received such assurances after leaving office, but if the president wants to keep them in check (and prevent them from taking important evidence with them), he probably shouldn’t make them too explicit promises. When the time comes for him to take his stand, he might as well pretend he doesn’t remember some of his former associates.

How do we counter amnesia and the calculated obstruction of accountability mechanisms, that is, how do we protect what the court describes as the right of the American people to access their history? Democrats can push for the protection of records or try to publicly shame those who remove websites and interpretations of events from American history (though that won’t do much good for what is surely the most shameless administration in American history). They can also set up some kind of truth commission (which may or may not offer reconciliation). Although often described as a failure, the congressional commission to investigate the events of January 6th did a good job of interviewing witnesses and collecting video footage, which clearly shows the violence that Republicans would prefer to forget today.

As for the president’s right to pardon, the Founding Fathers borrowed the idea from the British monarch, assuming that a president who abused that right would simply be removed from office. As Alexander Hamilton said, “The fear of accusations of weakness or indulgence will ensure… moderation.” There is a legal possibility of bringing charges for improper pardons, but since the president has been effectively granted immunity by a 2024 Supreme Court decision—which Gaiser cites extensively in his impunity opinion—the chances of that happening are slim. Passing a new constitutional amendment is also unlikely—but like many other things that might be helpful in the post-Trump era of political recovery, it should remain on the table as an option.

(Translated by Đorđe Tomic)