This story needs to see the light of day. It’s one more example of how this particular president does not see his role as serving the people. Soon (but not soon enough), we will see that he can’t cheat death, and we need to ensure that he can’t cheat history.
Thanks for this story, Gabe. I don't think most American's understand the importance of government records, good record keeping, and the ability to find government records when they are needed. The news reported on the Trump records was not complete and this fills in some important gaps. Keep "bird doggin" it for us!
The OLC opinion rests on the fundamentally faulty understanding of the difference between the President as a private citizen and as a government employee. As a private citizen, the President may be entitled to some discretion about purely personal correspondence and documents. For example, correspondence between the President and his/her spouse and family may be reasonably considered private. However, documents that are created as part of the President's official duties belong to his/her employer, the Federal government. This is no different than anyone who has ever signed an agreement that their work product belongs to their employer.
SCOTUS has given us a definition for how to draw the line between private and public. If the document refers to an activity for which the President can be prosecuted, then it is private. If it falls within the sphere of activity for which the President is presumptively immune, it is public.
“While Congress can take ownership of the records of the various federal agencies it has created (which it did in the Federal Records Act of 1950), the OLC says, it cannot do the same for “a constitutional office—the Presidency—that Congress did not create and that Congress cannot abolish.” “
Actually, Congress DID create the presidency, and the judiciary… The constitution itself was an act of Congress. And Congress alone has the power to abolish either or both of them.
This OLC holds the constitution as a modern-day theological text and that the president’s authority emanates from it, as from a god, rather than from the presently governed - via their representatives.
I can’t wait to see what judicial rulings and future laws this presidential overreach begets.
Hi Deborah, just to be clear -- Congress cannot abolish the presidency. The Constitution was written under a process set up by the predecessor to the modern U.S. Congress, but it was not an act of Congress: think of it as a blank slate that created an entirely new system and only took effect because it was ratified by the states (unlike acts of Congress, which are passed by the two chambers and signed by the president). The Constitution created the modern U.S. Congress, not the other way around. For any facet of the Constitution to be changed (including the structure of either Congress or the presidency), a constitutional amendment would need to be ratified by two-thirds of both chambers and three-fourths of the states.
The judiciary is a little bit more complicated. The judicial branch as a branch was created by the Constitution, not Congress, and it was mandated to include a Supreme Court. But the Constitution *did* leave to Congress pretty broad powers to set up the Supreme Court as well as lower courts -- though Congress could not outright abolish the Supreme Court, since the Constitution requires that there be one. Similarly, though the presidency itself is established by the Constitution and could not be altered by Congress, other lower executive branch offices were created by Congress and could be abolished by it. But even if that’s true of lower courts and lower executive officials, the president himself and Supreme Court itself derive their power and existence from the Constitution, not Congress.
Congress is back in session this week, right? What are you watching this week? What are your thoughts on what will happen to some of the members of Congress involved in scandals… do you think they will be expelled?
Thanks for reporting on this important story.
This story needs to see the light of day. It’s one more example of how this particular president does not see his role as serving the people. Soon (but not soon enough), we will see that he can’t cheat death, and we need to ensure that he can’t cheat history.
Thanks for this story, Gabe. I don't think most American's understand the importance of government records, good record keeping, and the ability to find government records when they are needed. The news reported on the Trump records was not complete and this fills in some important gaps. Keep "bird doggin" it for us!
The OLC opinion rests on the fundamentally faulty understanding of the difference between the President as a private citizen and as a government employee. As a private citizen, the President may be entitled to some discretion about purely personal correspondence and documents. For example, correspondence between the President and his/her spouse and family may be reasonably considered private. However, documents that are created as part of the President's official duties belong to his/her employer, the Federal government. This is no different than anyone who has ever signed an agreement that their work product belongs to their employer.
SCOTUS has given us a definition for how to draw the line between private and public. If the document refers to an activity for which the President can be prosecuted, then it is private. If it falls within the sphere of activity for which the President is presumptively immune, it is public.
“While Congress can take ownership of the records of the various federal agencies it has created (which it did in the Federal Records Act of 1950), the OLC says, it cannot do the same for “a constitutional office—the Presidency—that Congress did not create and that Congress cannot abolish.” “
Actually, Congress DID create the presidency, and the judiciary… The constitution itself was an act of Congress. And Congress alone has the power to abolish either or both of them.
This OLC holds the constitution as a modern-day theological text and that the president’s authority emanates from it, as from a god, rather than from the presently governed - via their representatives.
I can’t wait to see what judicial rulings and future laws this presidential overreach begets.
Hi Deborah, just to be clear -- Congress cannot abolish the presidency. The Constitution was written under a process set up by the predecessor to the modern U.S. Congress, but it was not an act of Congress: think of it as a blank slate that created an entirely new system and only took effect because it was ratified by the states (unlike acts of Congress, which are passed by the two chambers and signed by the president). The Constitution created the modern U.S. Congress, not the other way around. For any facet of the Constitution to be changed (including the structure of either Congress or the presidency), a constitutional amendment would need to be ratified by two-thirds of both chambers and three-fourths of the states.
The judiciary is a little bit more complicated. The judicial branch as a branch was created by the Constitution, not Congress, and it was mandated to include a Supreme Court. But the Constitution *did* leave to Congress pretty broad powers to set up the Supreme Court as well as lower courts -- though Congress could not outright abolish the Supreme Court, since the Constitution requires that there be one. Similarly, though the presidency itself is established by the Constitution and could not be altered by Congress, other lower executive branch offices were created by Congress and could be abolished by it. But even if that’s true of lower courts and lower executive officials, the president himself and Supreme Court itself derive their power and existence from the Constitution, not Congress.
I stand corrected. Thank you, Gabe.
Thank you Gabe, for again covering an important topic that we would not know about without you covering it in such good detail . Jane Schaefer
Congress is back in session this week, right? What are you watching this week? What are your thoughts on what will happen to some of the members of Congress involved in scandals… do you think they will be expelled?
I appreciate the analysis! Thanks