Inset: Jack Smith speaks about an indictment of former President Donald Trump, Aug. 1, 2023, at a Department of Justice office in Washington (AP Photo/Jacquelyn Martin, File). Background: President Donald Trump speaks with reporters in the Oval Office at the White House, Tuesday, Feb. 11, 2025, in Washington, D.C. (Photo/Alex Brandon).
A lawyer from the Biden administration, known for dismissing Donald Trump’s objections regarding the release of former Special Counsel Jack Smith’s January 6 report, has issued a critique of a controversial Department of Justice memorandum. This memorandum boldly diverges from established Supreme Court precedent, which the lawyer described as “astonishing.”
Christopher Fonzone, a former Assistant Attorney General with the Office of Legal Counsel (OLC), shared his detailed analysis on the Just Security blog on Wednesday. He expressed serious concerns over the Trump administration’s April Fools’ Day memo that declared the Presidential Records Act (PRA) entirely invalid, stressing that this issue is far from humorous.
Fonzone warned of the significant implications, noting that the OLC’s opinion on the PRA essentially permits Executive Branch officials to destroy presidential records. This stance has sparked numerous lawsuits, as these legal actions aim to protect Congress’s measures against abuses of power reminiscent of the Nixon era.
In his analysis, Fonzone summarized the legal stakes, pointing out that the Trump administration seems to wish to revert the law to its pre-PRA state. He criticized the memo for failing to effectively address, let alone challenge, the Supreme Court precedents from the Watergate era, despite its argument for the PRA’s complete invalidation.
“It’s truly astonishing that the Executive Branch claims the freedom to disregard an important statutory framework simply because the OLC has decided that a supposedly binding Supreme Court precedent is ‘wrong,'” Fonzone remarked. He acknowledged that while it’s not unheard of for the OLC to deem a statute unconstitutional, it is exceedingly rare. To his knowledge, no previous OLC opinion has reached such a sweeping constitutional conclusion that contradicts both Supreme Court and longstanding Executive Branch precedents.
Once tasked with advising Attorney General Merrick Garland on a legal question of significance, Fonzone, in January 2025 and before a change in administrations, rejected Trump’s “objections” to the release of Volume I of Smith’s report.
Trump had argued that immunity and one judge’s conclusion that Smith was unconstitutionally appointed and funded meant Volume I could not go public, but Fonzone said otherwise and the Jan. 6 part of the special counsel’s probe was released. The same cannot be said of Volume II, the final report on the Espionage Act and obstruction case against Trump, his valet, and a Mar-a-Lago property manager.
Law&Crime noted previously that current assistant attorney general T. Elliot Gaiser’s memo referenced Trump’s dismissed Mar-a-Lago classified documents case and slammed “attempts […] to subject a former President to criminal liability for his handling of presidential records that, for most of this Nation’s history, would have been subject to his complete discretion.”
That helped contextualize the attempt to nullify the PRA, which Congress enacted in 1978 — four years after Nixon lost the Watergate tapes case at SCOTUS and resigned in disgrace. The act gave the United States “complete ownership, possession, and control” over presidential records, requiring that the chief executive “adequately” document “activities, deliberations, decisions, and policies that reflect the performance of the President’s constitutional, statutory, or other official or ceremonial duties” for their submission to the National Archives.
During the classified-documents prosecution, then-defense attorney Todd Blanche memorably failed to convince Judge Aileen Cannon that the presidential-records-are-personal tradition, which started with George Washington and should be extended to Trump to exempt him from the criminal process, regardless of intervening SCOTUS precedent.
Cannon, a Trump appointee, nuked the case on other aforementioned grounds and went on to bar the DOJ and Smith from “releasing, sharing, or transmitting Volume II” or “any information or conclusions” about it publicly.
Most recently, Cannon approved the Trump argument that Fonzone expressly rejected as applied to Volume I. She berated Smith for having the audacity to create Volume II in the first place, given that she invalidated his authority, calling that a “concerning breach of the spirit of the Dismissal Order,” if not an “outright violation[.]”
Now, the department that Blanche leads as acting attorney general has cited the tossed case as a reason the PRA must be disregarded and challenged out of existence.
“The seeming acquiescence of the Executive Branch since the PRA’s enactment may be motivated by nothing more than discretionary choices to avoid an interbranch conflict. But, over time, it has subtly reshaped how the political branches and the public perceive the separation of powers,” the memo said. “This shift has already gone so far that attempts have been made to subject a former President to criminal liability for his handling of presidential records that, for most of this Nation’s history, would have been subject to his complete discretion.”
Jack Goldsmith is a Harvard Law professor remembered for his time in President George W. Bush’s administration, heading the OLC in the wake of 9/11, only to resign after less than a year on the job and immediately following his withdrawal of the “torture memos.” Given that history, Goldsmith has at times weighed in on OLC-related matters, most recently with an analysis on the legal basis for the U.S. operation to arrest Nicolas Maduro in Venezuela.
Upon reading Fonzone’s piece, Goldsmith deemed it a “quietly devastating” articulation of the law as it is.
NYU Law Professor Ryan Goodman, also co-editor-in-chief of Just Security, similarly praised the analysis as the “gold-standard,” while calling attention to the assessment of another OLC alum.
Georgetown University Law Center Professor and former Obama administration deputy assistant attorney general Marty Lederman slammed Gaiser, 36, for producing “what might be the most unprofessional and embarrassing opinion OLC has written in recent years (yes, worse even than the Venezuela opinion, even if the stakes aren’t quite as great).”
