DOJ Allegedly Informed Trump of Authority to ‘Destroy Records at Will,’ Claims Lawyer

Just days after the Department of Justice released a memo suggesting that a federal law on records preservation, initially enacted after the Watergate scandal, no longer applies to former President Donald Trump, a popular YouTuber with a substantial following urged a judge to implement a “preservation order” urgently.

National security lawyer Kel McClanahan filed a letter Monday on behalf of LegalEagle — the YouTube account of attorney and legal commentator Devin Stone — asking U.S. District Judge Theodore Chuang to agree that the DOJ Office of Legal Counsel’s (OLC) opinion from April 1 “shattered” the “presumption of regularity” on the part of the government by declaring that the Presidential Records Act (PRA) unconstitutionally made the president’s personal records the property of the United States.

The Presidential Records Act (PRA), established in 1978, was a direct response to the Watergate scandal that led to President Richard Nixon’s resignation. This legislation grants the U.S. government full ownership and control of presidential records, mandating that the president properly document all activities, deliberations, and decisions that relate to official duties. These records are then submitted to the National Archives and Records Administration (NARA).

According to Law&Crime’s report from two weeks ago, Assistant Attorney General T. Elliot Gaiser’s comments stirred controversy. He claimed that the law, which Trump had previously referenced in a failed attempt to justify taking classified documents to his Mar-a-Lago residence after his presidency, was “invalid in its entirety.”

This sparked criticism from groups involved in separate legal actions related to former special counsel Jack Smith’s investigation. They described the DOJ’s stance as akin to giving Trump a “permission slip” to conceal “corruption.” Consequently, a lawsuit was filed demanding that Acting Archivist Ed Forst adhere to the PRA’s requirements.

In March, LegalEagle initiated a Freedom of Information Act (FOIA) lawsuit, and a recent letter emphasized to Judge Chuang that the situation has become even more critical.

“[A] significant portion of the records responsive to the FOIA request at issue in this case—if not all of the responsive records—have been ‘returned’ to President Trump’s Mar-a-Lago Club, but we maintain that, as presidential records, they continue to be in Defendant’s legal custody. However, while I have attempted to reach an agreement with Defendant’s counsel in which they would commit to preservation of these records, they will only commit to preserving records in the agency’s custody, without agreeing that the records currently at the Mar-a-Lago Club are in the agency’s custody,” the letter said of NARA. “In fact, they refuse to even admit or deny the allegations that the records were transferred to the Mar-a-Lago Club in the first place, calling those paragraphs ‘irrelevant’ in their Answer.”

The letter submitted that “a preservation order is desperately needed” and on an “expedited” basis, so the plaintiff is “not irreparably harmed by the destruction of responsive records.”

“Through this OLC opinion, DOJ has officially informed President Trump and his staff that, as far as DOJ is concerned, they are free to destroy any and all presidential records at will—including the records responsive to Plaintiffs’ request—with no fear of any consequences,” the filing concluded. “While Defendant’s commitment to preserving all responsive records ‘in its custody’ would normally suffice, its refusal to agree that the records at the Mar-a-Lago Club are in its custody, coupled with this new OLC opinion, demonstrates that a preservation order is desperately needed in order to ensure that Plaintiffs are not irreparably harmed by the destruction of responsive records.”

Chuang, a Barack Obama appointee sitting in Maryland, is also presiding over the classified documents prosecution of Trump’s former national security adviser John Bolton.

Reached for comment, McClanahan told Law&Crime that he’s brought four different cases against the administration over matters including the alleged “attempt to censor” Bolton’s tell-all book and the preservation of Mar-a-Lago records for evidentiary and legal-historical purposes.

“Even if Trump had not been reelected, these would be critically important pieces of evidence as the country tries to resolve and recover from the chaos of that administration, but with Trump back in the Oval, it’s even more important to understand all the ways he and his abused their authority the first time around (or, in the case of the Mar-a-Lago records, after he left office) so we can try to mitigate the damage this time,” he said.

Read the letter here.