With help from the DOJ, the National Archives enters the political fray

The Select Committee investigating the events on January 6, when Donald Trump was still president, is asking the White House to produce documents relating to that day.  Trump has filed a motion asking the court to issue a preliminary injunction on the ground that these documents are both private and privileged and should not be produced.

Then, on October 30, 2021, something peculiar happened: the National Archives and Records Administration (NARA), acting through the DOJ, filed a brief opposing Trump's motion.  NARA should never have done this, and the court should rightfully ignore it.  "Non-partisan" government entities should not be writing and submitting opposition briefs in politically fraught lawsuits.  Doing so only leads to the further politicization of every aspect of our government.

NARA's founding statute is clear:

There shall be an independent establishment in the executive branch of the Government to be known as the National Archives and Records Administration. The Administration shall be administered under the supervision and direction of the Archivist.

NARA is not supposed to advocate for anyone's position.  It is more than a little disturbing that a supposed "independent" record-keeper decided to file its own brief with the D.C. District Court in a current proceeding, in which it argues that a past president should be forced to disclose presidential records.  It is even more disturbing, but not that surprising, that none of the mainstream media felt the need to make any comment.

In its brief, NARA says it is releasing the documents in question under the Presidential Records Act (PRA), particularly sections 2204 and 2205, and Executive Order 13489.  Unfortunately, this argument lacks a solid legal foundation, and NARA (either innocently or not) has misinterpreted its role.

To clarify, NARA has one job: to be the custodian of records.  Simply put, the statute does not give it any other function.  NARA does not get to opine under the PRA and tell the court what it should decide.  Its only job is to do as the court orders.

The NARA brief itself even admits that, under the PRA, "the Archivist shall abide by the incumbent President's determination as to a privilege assertion by a former President unless otherwise directed by a final court order."  There has been no final court order here.  It is inconceivable why NARA would believe that it has the right or the reason to tell the court how it thinks the court should rule.

NARA is supposed to be "one of the most significant non-partisan agencies of the United States government."  (Emphasis added.)  Yet, clearly, Archivist David Ferriero and his office have no shame in publicly disclosing the fact they are working alongside Biden's Department of Justice — the same DOJ that is also allegedly investigating the "attack" on the Capitol.

The DOJ's involvement here speaks volumes.  In general, Congress cannot use a subpoena for law enforcement purposes or to "try someone before [a] committee for wrongdoing."  See Trump v. Mazars, USA LLP, 140 S. Ct. 2019 (2020).  It appears they by "representing NARA," the DOJ is trying to help Congress do just that.

It is important to recognize the DOJ's alleged function in this case.  Its eight attorneys are listed as counsel for NARA, which means that their job is to present their client's position.  Since the DOJ is not a party to this case, its representation means one of two things: either NARA is doing something that is extremely unconstitutional by abdicating its role as the custodian or the DOJ is trying to insert itself by way of the unassuming NARA.  Both are simply baffling.

At what point is America going to realize how egregiously Congress is overreaching when it demands that a president (whether past or current) disclose privileged documents?  If it wasn't already clear, it should now be obvious that Congress does not intend to hold accountable anyone other than former President Trump.  In their overzealous attempt to win at any means and get as many bites as possible at the apple, Democrats have now corrupted what was once an independent government agency and the well-respected office of the archivist of the United States.

This is both shameful and unconstitutional.

Image: National Archives building by Kurt Kaiser.  Public domain.

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