Throughout former President Donald Trump’s tenure, the White House stonewalled congressional oversight requests with impunity. Most, if not all, of these matters were clearly of legitimate interest to Congress and concerned information that Congress was entitled to receive, from troubling security clearance practices to violations of federal record-keeping laws, to Trump’s efforts to pressure Ukraine to investigate his political opponent. Despite a dizzying number of subpoenas and litigation in federal courts, the Trump administration successfully stymied Congress from obtaining many of the White House documents it was entitled to.
Until now. Congressional committees working to enact reforms to prevent Trump-style abuses now have an easier path to obtain Trump White House documents to aid their investigations — and they can do so without requiring President Joe Biden to intervene.
Under the Presidential Records Act (PRA), as soon as a president leaves office, that president’s records (except those deemed to be personal records) are transferred to the control of the Archivist of the United States at the National Archives and Records Administration (NARA). Although former presidents are permitted to restrict access to their records for up to 12 years after they leave office, the PRA creates a specific exception to these restrictions that permits release of the records to either house of Congress or “to any committee or subcommittee thereof if such records contain information that is needed for the conduct of its business and that is not otherwise available.”
The list of records that meet this standard is long. The Trump records previously requested by Congress — concerning pay-for-play foreign policy in Ukraine as well as serious risks related to security clearances for senior White House officials or former National Security Adviser Michael Flynn’s lies to the FBI — all squarely fit within the business of Congress. They not only relate to ongoing investigations, but also to potential legislative fixes for the myriad opportunities for executive abuse of power exposed by the Trump administration.
Congress could also request recent records to help examine the entirety of the violent January 6th attempted insurrection, such as by requesting White House visitor logs and the president’s phone logs from January 5th and 6th. With less than two weeks before the impeachment trial, the PRA’s procedures may be Congress’s best tool for obtaining primary evidence of Trump’s culpability. Though the PRA and its implementing regulations generally require a months-long consultation period before releasing records, the law also says the Archivist must adjust the time period to comply with the return date of a congressional subpoena. Given Congress’s urgent need for records, NARA would be required to respond promptly. For the first time, Trump isn’t in charge of the evidence against him.
Compared with the past four years of obstruction, the process available to Congress today has reassuring bureaucratic guardrails. Congress can request the Trump records directly from NARA, circumventing both the former and current occupants of the White House. One of the most recent instances in which this process was used was in the investigation leading to the confirmation of Supreme Court Justice Brett Kavanaugh, when separate sets of records were requested by Senate Judiciary Committee Chair Chuck Grassley and Ranking Member Dianne Feinstein, as well as by House Judiciary Committee Chair Jerrold Nadler. In that case, NARA made clear its view that it can only release documents to committee chairs and not to minority members, thus turning over 900,000 pages of records to Grassley, but none to Feinstein. Democrats’ recent Senate wins in Georgia, resulting in Democratic control of both chambers, takes yet another hurdle out of Democrats’ long efforts to procure Trump’s presidential records that are needed to conduct congressional business.
Though requesting the records directly from NARA presents a path forward for congressional investigators, congressional access is not unfettered. The documents are still subject to privilege assertions, which means some amount of delay is still likely.
The PRA specifies that congressional access is subject to “any rights, defenses, or privileges” the president may enjoy, including attorney client privilege or executive privilege. In Nixon v. Administrator of General Services, the Supreme Court held that former presidents can assert privileges over documents from their term in office. This is the hurdle Nadler faced when seeking the Kavanaugh documents: NARA made clear that Presidents George W. Bush and Trump could review the documents before they were produced to Nadler.
Trump can — and likely will — claim that documents requested by Congress are privileged from disclosure. But the primary privileges Trump might assert, particularly variants of executive privilege, are qualified and can be overcome by a clear demonstration of need for the requested documents. In addition, any of Trump’s privilege assertions must be affirmatively upheld by President Biden or the documents will be subject to release absent a court order enjoining disclosure.
This course gives the Biden administration a middle road. On the one hand, a determination by the Biden administration that Trump’s presidential privilege assertions are not valid or that Congress has demonstrated sufficient need to overcome that privilege could harm the institutional prerogatives of the presidency. But on the other hand, the documents Congress is likely to seek – those related to the Capitol insurrection, efforts to solicit Ukrainian interference in a U.S. election, and other instances of potentially egregious abuses of power—present such severe misconduct (in some cases, severe enough to warrant impeachment) that the Biden administration would be loath the let them go unchecked.
The PRA’s statutory scheme then offers the Biden administration a tempting alternative: do nothing. The PRA requires the Archivist to release requested records if the incumbent President declines to uphold a former president’s privilege assertions or if the incumbent President fails to make any determination at all within the applicable period (a period of two to three months that the Archivist is required to shorten to comply with the return date of a congressional subpoena). 44 U.S.C. § 2208. By failing to make any determination with respect to Trump’s records, the Biden administration might avoid setting a troubling precedent for protecting executive privilege, rather than by affirmatively declining to uphold his privilege assertions.
Under the PRA’s statutory scheme, Trump would still be permitted to file a lawsuit to obtain an order enjoining the release based on privilege claims. But there is reason to believe that Congress is in a significantly stronger position to obtain the documents now than it was during the Trump administration.
First, during the Trump administration, the burden was on Congress to bring litigation to enforce its many subpoenas, and courts wavered (and continue to waver) on whether the House of Representatives even had a right to enforce its subpoenas in federal court. The burden of bringing suit has now shifted to Trump. Trump must now independently file a complaint and succeed in securing an injunction to stop the release of these records.
Second, Trump — notorious for pressing the Department of Justice to act in his personal interest — will no longer be able to marshal the public resources of the federal government to defend his baseless refusals to cooperate with congressional oversight requests. Instead, Trump will have to use his own resources to defend his privilege assertions. And courts may not find aggressive privilege claims as credible when advanced by Trump’s personal lawyers as when advanced by the Department of Justice. If Congress requests Trump White House records on matters of legitimate concern and follows through with resolve, it may well succeed where it did not during Trump’s term.
One last advantage to requesting the documents through NARA is that it does not require the Biden administration to be the conduit. The Biden administration may have the ability to produce White House documents from the Trump administration directly to Congress (though its authority to produce them may be contested), but, the new administration has made clear that, at least with respect to the ongoing impeachment process, it does not want to be involved in the tussles between Congress and the last administration. Under the PRA, Congress can put the onus on NARA to make Trump White House documents available. As long as the Biden White House does not act to affirmatively uphold Trump’s privilege claims, the records are subject to release unless Trump independently secures an injunction.
With Trump out of office, Congress has a better chance of finally receiving responses to its legitimate document demands. After four years of Trump’s unprecedented obstruction of congressional oversight, obtaining records that could shed more light on his administration’s abuses of office is vital not just in holding officials accountable, but in ensuring such abuses do not occur again.