Off the Record? The Constitutionality of the Presidential Records Act

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Welcome to FedSoc Forums, a Federalist Society podcast. I'm Elizabeth Slattery,
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Vice President of Practice Groups. Be sure to subscribe wherever
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you get your podcasts so you won't miss an episode.
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Now please enjoy today's conversation.
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Good afternoon, everyone, and welcome to FedSoc Forums. My name
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is Boone Todd, and I'm a third-year law student at
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George Mason University. I also serve as a student liaison
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to the Federalist Society's Federalism and Separation of Powers Practice Group.
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As a reminder, all opinions expressed are those of our
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speakers and not of the Federalist Society, as the Federalist
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Society takes no positions. Today's program is titled, Off the Record,
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The Constitutionality of the Presidential Records Act. We're very pleased
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to welcome an excellent group of panelists. Michael Edney is
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a partner at Morgan, Lewis, and Bacchus LLP. During the
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administration of former President George W. Bush, he served as
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Deputy Legal Advisor to the National Security Council at the
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White House. and in the Office of Legal Counsel at
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the United States Department of Justice, where he helped the
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administration address many legal issues pertaining to the United States'
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post-9-11 campaign against terrorism.
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Excuse me.
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Christopher Fonzone is a non-resident senior fellow at the Rice
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Center on Law and Security at NYU School of Law.
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Fonzone served as the Assistant Attorney General for the Office
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of Legal Counsel at the Department of Justice from 2023
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to 2025. From 2021 to 2023, he was the General
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Counsel of the Office of the Director of National Intelligence.
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During the Obama administration, Fonzone was Deputy Assistant and Deputy
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Counsel to President Obama and the Legal Advisor to the
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National Security Council, NSC. And earlier in his career, Fonzone
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was Special Counsel to General Counsel of the Department of
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Justice and served in career roles at the Department of Justice,
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both at OLC and on the Civil Division's Appellate Staff.
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Our moderator, Zach Smith, is a senior legal fellow of
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courts in the Constitution at the Heritage Foundation. He previously
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served for several years as an assistant United States attorney
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in the Northern District of Florida. Prior to that, he
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spent two years as an associate in the Washington, D.C.
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office of Cleary, Gottlieb, Steen, and Hamilton, which he joined
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after clerking for the Honorable Emmett R. Cox on the
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United States Court of Appeals for the Eleventh Circuit. One
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note for our audience before we begin. If you have
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any questions throughout the webinar that pertain to the topic
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at hand, please submit them through Zoom's Q & A
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feature located at the bottom of your screen, not the chat,
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so that we'll be able to access them later in
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the program. With that note, I will turn things over
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to our speakers to start the conversation. Zach, thank you
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so much for joining us and for moderating today's discussion.
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Great. Happy to do it.
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Thank you so much for that kind introduction, Boone, and
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thank you to everyone for joining us for the webinar today.
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For those who are unfamiliar, for the past 50 years
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or so, the Presidential Records Act has governed the retention, preservation,
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and ownership of presidential records. But in April of this year,
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the Department of Justice's Office of Legal Counsel put out
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an opinion saying that the Presidential Records Act is unconstitutional
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and that the president and his staff no longer need
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to comply with it because it exceeds Congress's power.
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This, of course, led to litigation. And in May of
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this year, U.S.
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District Judge John Bates preliminarily concluded that the Presidential Records Act,
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in his view, is likely constitutional and ordered numerous executive
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branch officials and agencies, though not the president and the
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vice president, to comply with it. The government has appealed
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that decision to the D.C.
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Circuit Court of Appeals.
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To help us unpack the history of the Presidential Records Act,
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the current litigation, and most importantly, to discuss the constitutionality
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of the Presidential Records Act. As Boone mentioned, I'm very
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pleased to be joined today by Chris and Michael.
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Each of them will.
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Give some opening statements discussing the history of the act,
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their views on its constitutionality, as well as some updates
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on the current litigation. And again, as Boone said, as
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both Chris and Michael are giving their opening statements, please
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feel free to add any questions you might have through
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the Q & A function. And with that, Chris, if
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it's okay, I'll turn the floor over to you to
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kick us off today.
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Great.
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Thanks, Zach, and thank you, Boone, for the introduction, and
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thanks to the Federal Society for hosting this. I think
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I'll start off by just giving a little bit of background,
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expanding what Zach said about the history of the PRA,
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what it does, and the sort of procedural history of
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the current case, and then turn into some.
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Remarks on the merits and the substance of the issue.
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So, You know, the history of the Presidential Records Act,
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I think, until the Nixon administration, so from Washington to Nixon,
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I think the presidents generally considered their records to be
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their own personal property. And the government's brief in this
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current litigation pending in the D.C. Circuit actually runs through
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some of that history. It's kind of fascinating. Some presidents
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burned their papers. Others left their papers to their heirs.
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Still others sold their papers to Congress. I think you
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started to see some... some regulation of presidential records in
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the middle of the 20th century, when you had the
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New Deal, the creation of the national security state, the NSC,
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you started having a bigger White House apparatus. And around
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that time, Congress passed the National Archives Act. FDR donated
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his papers to the federal government and established the first
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federally managed presidential library. And Congress subsequently expanded the presidential
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libraries act to basically fund presidential libraries. And that was
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kind of state of play. That was voluntary. Presidents still
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considered records of personal property. And that was the state
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of play when the Nixon administration came. And I think
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the current regime governing presidential records really traces its roots
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to Watergate. During Watergate, Congress battled former President Nixon to
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prevent the destruction of the tapes related to the investigation.
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As part of that battle, they enacted a statute called
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the Presidential Recordings and Materials Preservation Act. which required Nixon
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to turn over the tapes to the National Archives and
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directed the GSA administrator to prepare those materials for public access.
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Nixon unsuccessfully challenged that that act is unconstitutional. And alongside
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the Preservation of Records Act that they passed with respect
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to President Nixon, Congress also established a National Study Commission
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on Records and Documents of Federal Officials, which was one
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of these blue room panels, former attorney generals, former members
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of Congress, etc., to make recommendations on what to do
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with federal records and Peasant's records included. That study took
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account of the fact that the system that pre-existed Nixon,
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even before the fights over Nixon's records, wasn't exactly perfect.
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There were some situations during the Kennedy administration where they
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wanted to access national security-related records. They weren't able to
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access them from the prior libraries. And the commission ended
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up proposing legislation to regulate the preservation and access to
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presidential records would balance the president's need to discharge his
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functions and receive uninhibited advice with the public's interest and
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Congress's interest in the preservation of the records and the
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ability of the public to access them. Based on those recommendations,
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Congress passed the Presidential Records Act, which is the focus
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of our conversation today. And I think I'd make four
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points about what the PRA does. The first is it
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establishes that the presidential records are the property of the
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United States and not the officeholder, not the president. That's
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the first main thing it does. Second, it establishes the
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coverage of the act, and the coverage is all documentary materials,
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which is basically all records related to the president's performance
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of their– I think the language is– their constitutional statutory
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and other duties. That includes, Congress amended the act in
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2014 to make clear that includes text messages, but the
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act does exclude purely private messages such as journals and
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campaign information. So that's the second thing, the coverage. The
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third thing is the obligations it places on the president.
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So during the president's term, the president is exclusively responsible
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for the custody, control and access of presidential records and
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also responsible for taking such steps as may be necessary
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to assure that his activities and performing his duties are recorded.
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The requirement for maintaining those records is not absolute.
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The president can dispose of records that lack administrative, historical, informational,
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or evidentiary value, but to do that, they have to
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run through a process where they notify the archivist. has
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a discretion to, and I would guess would consult with Congress.
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And then there has to be a waiting period after
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that as well. So that's the president's obligations. And the
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fourth thing that the act does is it sets up
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a regime of access post-presidency. So when the president leaves office,
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all the records are transferred to the national archives and
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the archivist, um, And then there's a scale for when
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they are made available to the public.
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Through the Freedom of Information Act. I think the default
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is five years.
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The president can designate records to be withheld from public
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access under FOIA for up to 12 years if they
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fall within certain categories like national security information, information related
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to appointments, trade secrets, confidential communications, etc., During that five
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to 12-year period, the only way the records could be
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accessed is via a legal process, a subpoena. They can
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be accessed by the incumbent president in the furtherance of
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the incumbent president's official duties. The former president can access them,
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and a congressional committee can access them as well. And
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the final thing is, within the five to 12-year period,
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within five to 12 years or afterwards in FOIA, Anytime
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the archivist determines that a record needs to be made available,
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they must provide notice to both the incumbent and the
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former president. If the incumbent president decides to assert any
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of the constitutionally available privileges of the presidency, the records
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are not made public. The former president also has the
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opportunity to say they would like those privileges asserted. If
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the incumbent president backs up the former president's claim, the
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records are not public. If the incumbent president does not
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back up the former president's claim, the statute creates a
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cause of action so the former president can bring suit
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to block release in, I think, the D.C.
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District Court.
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So that's how the Presidential Records Act works. Just to
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quickly run through the procedural history in District Court before
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I give Mike an opportunity to add in anything on
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the background, I'd like to add, as Zach mentioned, on
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April 1st, This year, OLC issued an opinion declaring that
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the act was facially unconstitutional. They basically made two arguments there.
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One is that it exceeds Congress's enumerated and applied powers.
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And second, that it violates the separation of powers by
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aggrandizing the legislative branch at the expense of constitutional independence
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and autonomy of the executive.
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The next day, the.
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White House counsel issued guidance to the executive office of
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President on actions they could take to preserve records in
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the absence of the PRA given its facial unconstitutionality.
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The guidance was limited to staff.
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And made preserving records voluntary rather than mandatory.
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And moreover, the guidance.
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Specifically encouraged staff not to preserve text messages, which is,
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I think, one of the major things that came up
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in the district court.
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And then as.
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As Zach mentioned, two sets of plaintiffs, a group of historians.
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The American Historical Association and the Freedom of the Press Foundation, sued,
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seeking a preliminary injunction, alleging that the records policies violate
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the Records Act.
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And Judge Bates.
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concluded that he thought it was likely that they would
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win on the merits. He said that the— and this is
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just reading from the opinion, basically.
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That it was valid— the.
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Statute of the PRA was validly enacted by Congress under
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the Property Clause because Congress may prospectively designate presidential records
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as federal property and then regulate that property and also
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valid exercise under the necessary and proper clauses promotes the
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accountability and efficiency of executive branch operations. And then he
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ruled it does not impermissibly intrude on any presidential prerogative,
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especially because presidents, including President Trump in his first term,
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have complied with this complaint for almost 50 years and
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the new guidance. And then he also pointed out that
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the EOP voluntarily imposes similar burdens. which makes the claim
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that it's an impermissible burden. He didn't find carry today.
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So that's basically where we are right now. The government
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has appealed this to the D.C. Circuit.
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The case is fully briefed, and I think it's going
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to be argued in October. I don't know the exact date,
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but that's kind of the background, the current lay of
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the land. Before I hop into the merits, maybe, Mike,
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if you have anything to add that I missed there,
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please do so, or Zach also as well.
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That was great. Thanks for that overview, Chris.
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Mike, anything to add on the background?
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Yes, I think that was an excellent summary.
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The one thing I would note is that this guidance
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that came out of the White House Counsel's Office, it
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does not say that you can dump your text messages
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in the trash right rather if it is the only
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record of a policy making decision that does need to
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be preserved so essentially the text messages that are non-duplicative
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of other paper records can be disposed of under this
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guidance but otherwise i think that was an excellent summary
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of the situation.
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Thanks So I guess just going through the merits of
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the case, just taking a step back before turning to
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the specific doctrinal arguments, one thing that I think is
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important to recognize about the Preliminary Records Act is that
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it doesn't just cover the president and the vice president.
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It covers hundreds, perhaps up to 1,000 people working at
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the White House who.
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Are covered by the PRA. It covers.
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The White House office, which is the Chief of Staff's office,
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and the White House Counsel's office that covers everyone who
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works on the NSC, the Council of Economic Advisors, the
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Domestic Policy Council, the Office of Administration, the Executive Residence,
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the Commission on White House Fellows, the President's Intelligence Advisory Board.
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The Presidential Records Act is a bit of a misnomer.
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It's really the White House Records Act. All these people
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are paid with funds appropriated by Congress, working government buildings
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probably maintained by funds appropriated by Congress, and use government
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devices purchased with funds appropriated by Congress. It seems, you know,
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the records they create using these government devices, why wouldn't.
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They be the government's? Why wouldn't the government have some
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dominion over them? It's, you know, why would you write.
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A constitution and empower Congress to create all these offices
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and staff them and provide them with the resources to
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do their job, but not require them to require the preservation.
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Of the records? I think that'd be sort of an
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odd situation.
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Situation to create, I think the bar has got to
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be pretty high for Congress to argue that Congress lacks
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the power to enact the PRA. And I think as
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Judge Bates found, I don't think the government's arguments really
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get there. So just taking the two sources of congressional
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authority to discuss the property clause and then the necessary
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proper clause. On the property clause side, I mean, the
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property clause says the Congress shall have the power to
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dispose of and make all needful rules and regulations respecting
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the territory or other property.
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Belonging to the United States. So Judge Bates found, and
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I don't think the government.
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Even really disputes before the Court of Appeals, that given
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the reference to territory or other property, that that covers
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both real and the equivalent of personal property, property created
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by use of government devices like records. And the Supreme
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Court has actually held that other property subject to congressional
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regulation includes all other personal property rightfully belonging to the
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United States.
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So.
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It covers not just real property.
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And then the court has also held that the property
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clause grants Congress complete power over federal property analogous to
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the police power of the several states. So that really
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makes it seem like, you know, pretty slowly within that
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would be that Congress can require the preservation of records.
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The main counterargument the government makes, and really I think
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the only counterargument they're advancing, with any force in the
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Court of Appeals, is that you can't convert what's the
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president's personal property into government property.
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And Congress couldn't do that.
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So the records, like they were earlier in our history, should,
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you know, through the next administration, should be the president's
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personal property. I think there's two main issues with that.
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One is just the scope. You know, the vast majority
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of people covered by the PRA rarely, if ever, even
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see the president, you know, the thousand people in the
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White House. It doesn't seem like all of these people's
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records are the personal property of the president.
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That just seems sort of anomalous and doesn't seem quite right.
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Second, and this is what Judge Bates relied on, is
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that the district court concluded the property clause allows Congress
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to clarify and assert the federal government's property interests in
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cases where it possesses a legitimate entitlement.
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So here are.
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Where the records are created by government employees performing government
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functions using government devices.
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You know, it was silent before the.
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Presidential Records Act, but— It seems like Congress should have
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the authority to clarify that these records that you create
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using government monies.
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Et cetera, are actually our records. So that's the property clause.
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I think independent of that, there's also a necessary and
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proper clause basis for Congress to pass the statute. The
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Supreme Court has long held that the Congress's power to
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make necessary and proper laws for carrying out— and this is
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the second part of the clause that people don't talk
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about as much— all other powers vested by the Constitution and
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the government. The court has held that it authorizes Congress
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to regulate the operations of other branches to promote efficiency, integrity,
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and public accountability.
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So, I think the Records Act promotes those interests and more.
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It supports continuity of government, the interest of presidency by
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ensuring that future presidents are not dependent on happenstance or
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past decisions and getting access to records.
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There's an amicus.
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Brief submitted by a bunch of former national security officials
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who talk about how they've gone back to former presidents'
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00:18:12.359 --> 00:18:14.779
records to get access to records that are important about
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prior discussions with presidents. foreign leaders and diplomatic endeavors. There's also,
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in that brief, a discussion of how the NSC legal
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staff under George W. Bush went back and looked at
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documents from the Clinton NSC about interactions with Congress to
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make sure they were maintaining consistent positions or at least
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understood the.
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Changes they were making. I think there's a brief by NARA.
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Submitted by a bunch of former NARA officials about the
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importance of the Presidential Records Act and its system. during
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transitions when one White House leaves and the next one
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comes in and how they.
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Help maintain continuity of government there.
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And Congress also emphasized the act serves an important function
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by preserving a historical record for the public to study
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and learn from. I mean, that doesn't even get into
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potential necessary and proper arguments with respect to reasons Congress
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might want access to the records.
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So I think that the argument that the Congress has.
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The authority to enact this statute seems pretty clear. I
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think the government really— the argument they really lean on in
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the court is that it's a violation of separation of
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powers because it impermissibly infringes on the executive branch's prerogatives.
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And I think the two main— strands of that argument are, one,
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that it chills the president's advisors from offering candidate advice,
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and two, is that it burdens the White House with
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tedious record-caping duties that impede it from working on more
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important things.
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So I think just taking each of those in turn,
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with respect to the chill.
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Going back to the point made a second ago, the
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vast majority of people covered by the this act are rarely,
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if ever, interacting with the president, such that it's hard
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to see how their device is chilled. And beyond that,
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I think Congress took a number of steps to address
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this concern. One is the records remain within the control
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of the executive branch even after the president's term.
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They go to the archivist, which is an executive branch official.
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Two, there's a waiting period of at least five and
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up to 12 years before they become available to the public. Obviously,
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there's a small category of... category of.
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Category of, you know, either through lawful process or Congress
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might try to access them. But five to 12 years,
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they're not going to be coming public. And then third,
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whenever they may become public or be released, presidents still
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have the ability to assert all their constitutional privileges, which
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is what would be the case regardless, even if presidents
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still maintain the records. So it seems like Congress took
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a number of steps here to prevent the chill. And third,
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it's difficult to credit the claim empirically. Really, it's just
392
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an assertion that this chills White House advice. I mean,
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00:20:58.269 --> 00:21:00.829
there are lots of other things that I think are
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on people's minds when they're delivering advice to the White House.
395
00:21:03.400 --> 00:21:07.880
It seems like, given that Congress has specifically enumerated powers
396
00:21:07.940 --> 00:21:10.480
to enact this statute, that you need a little bit
397
00:21:10.500 --> 00:21:13.779
more to demonstrate that this impermissibly infringes on the executive branch.
398
00:21:14.400 --> 00:21:16.769
The notion that there's a burden... I think is even
399
00:21:16.789 --> 00:21:18.710
a little more, is even a little harder.
400
00:21:18.730 --> 00:21:24.710
You know, there's abundance statutory precedent for Congress regulating records disclosures.
401
00:21:26.750 --> 00:21:29.970
OLC testified when the act was first enacted that it
402
00:21:30.369 --> 00:21:34.049
posed no substantial separation of powers problems. And for the
403
00:21:34.069 --> 00:21:38.890
past 50 years, a period during which, I may add,
404
00:21:38.930 --> 00:21:42.470
the White House dramatically increased in power compared to the
405
00:21:42.509 --> 00:21:45.359
rest of the federal government. Every president complied with the act,
406
00:21:46.119 --> 00:21:52.380
negotiating records disclosure within its framework, and none challenges facial constitutionality. Um,
407
00:21:52.839 --> 00:21:56.279
so it feels like the burden, the claims of burden
408
00:21:56.299 --> 00:21:58.960
are hard to credit or difficult to credit as well.
409
00:21:59.039 --> 00:22:01.559
And while it does take up time, you know, both
410
00:22:01.579 --> 00:22:05.960
the show and the burden, they seem like there wasn't
411
00:22:06.079 --> 00:22:08.589
the type of showing that would, um, be enough to
412
00:22:08.609 --> 00:22:12.470
declare a statute facially unconstitutional. So maybe I'll pause there.
413
00:22:12.490 --> 00:22:14.329
I'm sure Mike is going to say where I got
414
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all of that wrong. And then we can, we can
415
00:22:16.109 --> 00:22:17.730
have a discussion.
416
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Yeah. Excellent.
417
00:22:19.279 --> 00:22:22.440
Thank you for that overview, Chris. Mike, I'm happy to
418
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turn the floor over to you.
419
00:22:25.099 --> 00:22:27.619
Thank you, Zach. Thank you, Chris. Thanks to the Federal
420
00:22:27.660 --> 00:22:29.240
Society for putting this together.
421
00:22:29.259 --> 00:22:33.660
So this is really an old story. This is a
422
00:22:33.700 --> 00:22:39.769
story about a post-Watergate, overbroad statutory incursion into the prerogatives
423
00:22:39.809 --> 00:22:40.910
of the executive branch.
424
00:22:41.670 --> 00:22:44.630
We've seen it before. There was a batch of.
425
00:22:44.589 --> 00:22:48.539
Legislation that came out in the wake of of Watergate,
426
00:22:48.700 --> 00:22:53.140
the War Powers Resolution of 1973, the Inspector General Act
427
00:22:53.160 --> 00:22:58.380
of 1978, the Foreign Intelligence Surveillance Act of 1978, the
428
00:22:58.420 --> 00:23:03.490
Congressional Budget and Impoundment Control Act of 1974, all were
429
00:23:03.990 --> 00:23:09.789
designed to curb perceived abuses of the executive branch and
430
00:23:09.809 --> 00:23:14.250
the presidency. And what many of them are example of
431
00:23:14.390 --> 00:23:17.630
is that bad facts often make bad law.
432
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And here, Watergate was certainly bad facts.
433
00:23:22.750 --> 00:23:26.269
I think the question is, did the PRA, did the
434
00:23:26.769 --> 00:23:28.970
Presidential Records Act also go too far?
435
00:23:30.049 --> 00:23:31.869
I think the answer to that question is yes.
436
00:23:32.970 --> 00:23:35.819
And I think the easiest way to answer that question
437
00:23:35.920 --> 00:23:39.920
is to imagine the following, something that we would like
438
00:23:39.940 --> 00:23:41.920
to call the Judicial Records Act.
439
00:23:42.480 --> 00:23:44.180
And that would require the.
440
00:23:44.079 --> 00:23:50.400
Preservation deposit with the archivist of all Supreme Court justice
441
00:23:50.460 --> 00:23:56.490
internal papers. With mandatory disclosure after a period of five
442
00:23:56.529 --> 00:24:00.240
years in the absence of exceptional circumstances or after 12 years,
443
00:24:01.599 --> 00:24:02.680
pretty much impossible.
444
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Without judicial intervention.
445
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And they shall be produced to members of Congress on
446
00:24:08.930 --> 00:24:10.650
demand who have problems with.
447
00:24:11.410 --> 00:24:12.509
Supreme Court decisions.
448
00:24:13.230 --> 00:24:16.049
And it is not the call of the Supreme Court
449
00:24:16.109 --> 00:24:21.869
justice that created them. That would be subject to extensive
450
00:24:21.910 --> 00:24:26.099
separation of powers objections. And, you know, the New York Times,
451
00:24:27.380 --> 00:24:30.440
I think perhaps the reporter of this article is listening
452
00:24:30.460 --> 00:24:33.220
to this as we speak, You wrote a story last
453
00:24:33.259 --> 00:24:38.940
Sunday about the records practices of various Supreme Court justices.
454
00:24:38.960 --> 00:24:42.680
They're a world away from what the Presidential Records Act
455
00:24:42.759 --> 00:24:45.460
is in terms of preserving the secrecy of those deliberations
456
00:24:45.940 --> 00:24:50.009
for extensive periods of time. Imagine a Trump executive order
457
00:24:50.089 --> 00:24:54.230
requiring all congressmen and senators to deposit with the archivist
458
00:24:54.529 --> 00:25:01.269
all documents relating to their legislative duties. The legislative branch
459
00:25:01.349 --> 00:25:04.740
would cry holy hell over that and the incursion to
460
00:25:04.839 --> 00:25:09.799
their exclusive prerogatives to have confidential deliberations about the votes
461
00:25:09.819 --> 00:25:13.160
that they take and what they request of the other.
462
00:25:13.039 --> 00:25:16.890
Coordinate branches of government. This argument about.
463
00:25:18.369 --> 00:25:22.910
Dealing with records doesn't get any better because it's congressional
464
00:25:22.950 --> 00:25:28.170
regulation of the president directly, something that was off limits
465
00:25:28.930 --> 00:25:34.359
until 1978. When Congress enacted the Federal Records Act in
466
00:25:34.359 --> 00:25:37.900
1950 and when they enacted FOIA along the lines of
467
00:25:37.920 --> 00:25:40.160
the Mississippi Procedure Act.
468
00:25:40.200 --> 00:25:42.779
They applied only to departments of agencies. They did not
469
00:25:42.819 --> 00:25:43.819
apply to the president.
470
00:25:43.920 --> 00:25:46.819
Even then, the Federal Records Act only applied to a
471
00:25:46.940 --> 00:25:51.049
sliver of documents. Here, it's every single scrap of paper
472
00:25:51.130 --> 00:25:55.069
that's ever created or received by the president and a
473
00:25:55.150 --> 00:25:57.890
host of other officials. I actually want to take a moment,
474
00:25:57.910 --> 00:26:01.150
a little time out here to address something that Chris
475
00:26:01.190 --> 00:26:05.450
was saying. You know, Chris is saying, look, maybe some
476
00:26:05.470 --> 00:26:08.349
of these arguments have purchase with respect to the president,
477
00:26:08.369 --> 00:26:10.410
but there's a whole bunch of people in the Presidential
478
00:26:10.450 --> 00:26:10.990
Records Act.
479
00:26:11.019 --> 00:26:12.359
I mean, I think that argument kind of goes in
480
00:26:12.400 --> 00:26:13.119
the other direction.
481
00:26:13.140 --> 00:26:16.819
You know, maybe the Presidential Records Act would have made
482
00:26:16.839 --> 00:26:19.619
a little bit more sense if it applied to the
483
00:26:19.759 --> 00:26:27.359
deputy assistant deputy pencil sharpener inside the office. old executive
484
00:26:27.420 --> 00:26:30.400
office building, but instead it applies to the president like
485
00:26:30.440 --> 00:26:31.059
it does.
486
00:26:30.880 --> 00:26:35.619
To even a number of the many more supportive.
487
00:26:35.640 --> 00:26:38.559
People that are subject to the PRA that probably number
488
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over 1,000.
489
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That's a problem.
490
00:26:43.329 --> 00:26:45.809
And then we just take a look at the Presidential
491
00:26:45.869 --> 00:26:47.210
Records Act, 44 U.S.C.
492
00:26:47.329 --> 00:26:50.359
Section 2205-2C. That says....
493
00:26:54.960 --> 00:27:02.420
That our friends in Congress get access to any document
494
00:27:03.039 --> 00:27:05.700
so long as it's needed for the conduct of his
495
00:27:05.740 --> 00:27:09.470
business and that it is not otherwise available. It is
496
00:27:09.509 --> 00:27:15.890
subject to executive privilege. But Congress need not wait for
497
00:27:15.930 --> 00:27:19.089
the five-year period. They need not wait for the 12-year period.
498
00:27:19.509 --> 00:27:21.569
They have a direct line.
499
00:27:21.170 --> 00:27:23.930
To the archivist, especially after the president is out of office,
500
00:27:24.410 --> 00:27:25.250
to get.
501
00:27:25.150 --> 00:27:27.789
This information on demand. Imagine if it were the other
502
00:27:27.829 --> 00:27:28.349
way around.
503
00:27:29.470 --> 00:27:32.150
That would be, and we were doing this to Supreme
504
00:27:32.190 --> 00:27:36.619
Court justices or congressmen and senators, that would be a non-starter.
505
00:27:37.460 --> 00:27:40.000
Sections 2204 and 2208.
506
00:27:40.819 --> 00:27:46.160
They create a process where presidential records become presumptively public
507
00:27:46.839 --> 00:27:50.140
unless the incumbent president.
508
00:27:49.880 --> 00:27:52.839
Upholds a claim of privilege. And, you know, if for
509
00:27:52.880 --> 00:27:54.579
some reason of political.
510
00:27:54.299 --> 00:27:57.259
Disagreement or otherwise, he does not, it's for the former
511
00:27:57.319 --> 00:27:59.740
president to run and get an injunction within 90 days.
512
00:27:59.839 --> 00:28:01.440
It has to do with the 90 days. They get
513
00:28:01.460 --> 00:28:03.960
within 90 days, they become presumptively public.
514
00:28:03.980 --> 00:28:09.690
I mean, this sets... This completely resets.
515
00:28:11.710 --> 00:28:16.869
The environment towards Congress and, frankly, any member of the
516
00:28:16.910 --> 00:28:21.619
public getting pretty much whatever they want absent extraordinary circumstances.
517
00:28:21.720 --> 00:28:27.200
And there's no question that the Presidential Records Act chills communications.
518
00:28:28.849 --> 00:28:34.119
dampens candor in writing. It drives sensitive communications with the
519
00:28:34.180 --> 00:28:36.480
president and the most senior parts of the White House
520
00:28:37.500 --> 00:28:42.720
into oral form, which is very likely inefficient, especially in
521
00:28:42.769 --> 00:28:47.769
this digital age. And it presumes that any failure to
522
00:28:47.809 --> 00:28:52.470
preserve or to disclose a document that's created inside the
523
00:28:52.509 --> 00:28:57.259
White House is to conceal misconduct. It displaces what the
524
00:28:57.650 --> 00:29:01.779
OLC opinion calls the presumption of regularity that we apply
525
00:29:01.839 --> 00:29:04.720
to the other two branches of government, that they're not
526
00:29:04.819 --> 00:29:07.640
just running around breaking the law, that a special showing
527
00:29:07.680 --> 00:29:11.819
needs to be made to come in and obtain these
528
00:29:11.880 --> 00:29:18.900
documents and have one branch invade the confidentiality.
529
00:29:21.769 --> 00:29:24.029
Obligations and interests of the other.
530
00:29:24.049 --> 00:29:31.920
And again, this There are many people that are subject
531
00:29:31.940 --> 00:29:35.640
to the Presidential Records Act, but these are the tests
532
00:29:35.660 --> 00:29:38.170
that are.
533
00:29:37.950 --> 00:29:39.970
Applicable to core presidential communications.
534
00:29:40.670 --> 00:29:43.640
Communications with the National Security Advisor or the Chief of
535
00:29:43.660 --> 00:29:47.339
Staff or other, you know, full assistance to the President
536
00:29:48.500 --> 00:29:51.180
that are in very, very close orbit in the presidential
537
00:29:51.680 --> 00:29:59.009
decision-making process. You know, And we have to bring it
538
00:29:59.069 --> 00:30:02.190
back to the other branches. It sets the default in
539
00:30:02.279 --> 00:30:04.740
favor of full transparency for a head of one of
540
00:30:04.779 --> 00:30:08.019
the branches. And we know it's an incursion into the
541
00:30:08.079 --> 00:30:11.420
prerogatives of that branch because the other branches just.
542
00:30:11.279 --> 00:30:12.319
Don't do it. Right.
543
00:30:12.480 --> 00:30:15.950
They don't they have not subjected themselves to the same rules.
544
00:30:16.349 --> 00:30:17.690
And there are reasons for that.
545
00:30:17.710 --> 00:30:19.769
You know, I think it's.
546
00:30:21.069 --> 00:30:26.339
The OLC opinion is broad and broad. Nobody's asking me
547
00:30:26.380 --> 00:30:28.400
to write an OLC opinion. Maybe it's not the one
548
00:30:28.519 --> 00:30:31.279
I would have written. And it's easy to pick at
549
00:30:31.339 --> 00:30:37.140
the low hanging fruit about the potential problems with respect.
550
00:30:36.779 --> 00:30:38.009
To the OLC opinion.
551
00:30:38.029 --> 00:30:43.849
You know, would we have the OLC opinion if there
552
00:30:43.910 --> 00:30:49.269
were a congressional statute that was directed only at the
553
00:30:49.329 --> 00:30:51.450
preservation of documents.
554
00:30:51.559 --> 00:30:55.059
That that mandated the.
555
00:30:57.099 --> 00:31:00.650
Kind of care and maintenance of those documents and leaving
556
00:31:00.690 --> 00:31:05.579
them in the presidential repository or with the archivists at
557
00:31:05.640 --> 00:31:11.559
the outgoing president's option. Maybe even a requirement that the
558
00:31:11.579 --> 00:31:14.619
president lay down a kind of a living will about
559
00:31:14.660 --> 00:31:17.930
what's supposed to happen with those documents after he's no
560
00:31:17.990 --> 00:31:23.349
longer around with in the hands of a presidential documents
561
00:31:23.410 --> 00:31:25.950
repository or in the hands of the archivist.
562
00:31:25.990 --> 00:31:28.079
Would we have an opinion like this or a dispute
563
00:31:28.119 --> 00:31:29.180
about it? Probably not.
564
00:31:31.160 --> 00:31:35.549
You know, I think, as Chris rightly points out, There's
565
00:31:35.609 --> 00:31:40.019
probably several grounds that Congress has to make.
566
00:31:39.920 --> 00:31:45.420
Sure that the records are kept in a tidy manner. Right.
567
00:31:46.640 --> 00:31:48.720
But that doesn't.
568
00:31:50.519 --> 00:31:57.859
Salvage the Presidential Records Act through severability because it's depositing
569
00:31:57.920 --> 00:32:03.250
all these documents with the archivist, giving that person essentially
570
00:32:03.309 --> 00:32:08.650
control and discretion over them and having these multiple incursions
571
00:32:08.730 --> 00:32:14.960
into the disposition of those documents. provisions of the presidential
572
00:32:14.980 --> 00:32:20.049
records act that, that are hard to, um, disaggregate from
573
00:32:20.109 --> 00:32:24.640
the preservation aspects of the, uh, presidential records act, um,
574
00:32:25.619 --> 00:32:30.559
And OLC might have been right about that, that the
575
00:32:30.599 --> 00:32:37.019
severability analysis is hard because once you give possession or
576
00:32:37.079 --> 00:32:39.980
control to somebody that's not going to honor the outgoing
577
00:32:40.029 --> 00:32:44.089
president's wishes, you have the separation of problems problem with
578
00:32:44.150 --> 00:32:46.069
respect to the disposition of documents.
579
00:32:47.910 --> 00:32:54.559
And so– The OLC opinion is probably wrong.
580
00:32:54.619 --> 00:32:57.160
I think I understand why it was written this way,
581
00:32:57.220 --> 00:33:00.420
but it's probably wrong to the extent that it argues
582
00:33:00.460 --> 00:33:04.420
that Congress has absolutely no business in the preservation of
583
00:33:04.519 --> 00:33:09.259
presidential documents. And it does a better job when it
584
00:33:09.740 --> 00:33:13.849
talks about the aspects of the Presidential Records Act that
585
00:33:14.009 --> 00:33:19.029
is an incursion in to what should be the former
586
00:33:19.069 --> 00:33:23.910
president's authority over the disposition of those documents, the release
587
00:33:23.950 --> 00:33:26.589
of them to a coordinate branch of government, or the
588
00:33:26.750 --> 00:33:30.380
making public of them, which is essentially the same thing.
589
00:33:30.400 --> 00:33:35.140
And I think it's worth noting that once we get
590
00:33:35.180 --> 00:33:38.140
past the Office of Legal Counsel opinion and we get
591
00:33:38.180 --> 00:33:44.250
into the litigation, the Justice Department appellate break papers do
592
00:33:44.309 --> 00:33:49.930
pivot to these disposition incursions and kind of back off
593
00:33:50.059 --> 00:33:55.960
the arguments that there's absolutely no congressional authority to provide
594
00:33:56.039 --> 00:33:58.259
for preservation.
595
00:33:57.519 --> 00:33:59.759
Of these records or maintenance of these records.
596
00:34:00.539 --> 00:34:03.200
Of course, there's nothing like the litigation process to make
597
00:34:04.059 --> 00:34:09.070
people focus on their best arguments. The Presidential Records Act
598
00:34:09.989 --> 00:34:13.610
is also a disruption of the historical accommodation process, which
599
00:34:13.650 --> 00:34:20.219
has been the cornerstone of Congress working with the executive
600
00:34:20.239 --> 00:34:24.599
branch to get information that is necessary for them to
601
00:34:24.639 --> 00:34:31.570
carry out their legislative function, to serve their legitimate legislative needs.
602
00:34:32.210 --> 00:34:35.840
And that's always been a negotiation process that has resulted
603
00:34:36.059 --> 00:34:42.500
in Congress starting broad, but then getting narrow and targeting
604
00:34:42.980 --> 00:34:49.059
their requests for information to what's really important. And you
605
00:34:49.239 --> 00:34:52.300
saw that history laid out from essentially the beginning of
606
00:34:52.360 --> 00:34:58.420
our constitutional republic to recent times in the OLC opinion.
607
00:34:59.059 --> 00:35:05.510
The Presidential Records Act flips that presumption. I mean, now
608
00:35:05.570 --> 00:35:08.389
the presumption is, well, you can give it to me now,
609
00:35:08.789 --> 00:35:11.409
or you can leave office and we're pretty much going
610
00:35:11.489 --> 00:35:13.710
to get it unless you can get the courts to
611
00:35:13.750 --> 00:35:14.789
intervene on your behalf.
612
00:35:14.869 --> 00:35:16.679
The courts have generally stayed out of that.
613
00:35:18.840 --> 00:35:23.860
But the Presidential Record Act flips that presumption towards disclosure
614
00:35:23.900 --> 00:35:24.420
to Congress.
615
00:35:24.940 --> 00:35:27.619
Flips that presumption towards disclosure.
616
00:35:27.119 --> 00:35:29.320
To the public, you know, that is not the way
617
00:35:29.380 --> 00:35:34.239
these branches have gone along historically. And, you know, it's
618
00:35:34.280 --> 00:35:37.269
a process that has worked well, and it's a process
619
00:35:37.309 --> 00:35:38.909
that hasn't involved the courts.
620
00:35:38.710 --> 00:35:42.000
For the most part. which is a good thing, right?
621
00:35:42.820 --> 00:35:47.280
These branches should be able to sort it out among themselves.
622
00:35:48.019 --> 00:35:52.880
The Presidential Records Act short-circuits that process, which has been
623
00:35:52.940 --> 00:35:57.059
a very important part of keeping our constitutional fabric together
624
00:35:57.480 --> 00:36:02.050
for many years, the accommodation process. There was a lot
625
00:36:02.070 --> 00:36:05.260
of talk in the litigation and the OLC opinion about
626
00:36:05.280 --> 00:36:08.119
this more or less having been decided by the Supreme
627
00:36:08.159 --> 00:36:12.960
Court in the 1977 Nixon versus Administrator of General Services case.
628
00:36:14.539 --> 00:36:19.309
I don't think that that resolves the issue necessarily. The
629
00:36:19.329 --> 00:36:23.849
Presidential Records and Materials Preservation Act, the first piece of
630
00:36:23.909 --> 00:36:28.960
legislation that Chris talked about, was very different. It was
631
00:36:29.099 --> 00:36:33.659
much closer to what the accommodation process is designed to accomplish.
632
00:36:33.739 --> 00:36:37.590
It was addressed at a specific investigation. into the Nixon
633
00:36:37.650 --> 00:36:44.369
administration's misconduct after resignation amidst allegations of misconduct. It was specific.
634
00:36:44.849 --> 00:36:47.800
The broader language in there about the authority of Congress
635
00:36:47.880 --> 00:36:52.400
over these records was not really necessary to resolve the
636
00:36:52.440 --> 00:36:55.539
matter at hand. And I don't think it will resolve
637
00:36:55.579 --> 00:37:00.019
the question of the constitutionality of the Presidential Records Act
638
00:37:00.059 --> 00:37:03.239
because this court knows how the slice the raw meat
639
00:37:03.300 --> 00:37:07.219
when it comes to, uh, uh, determining what's important, uh,
640
00:37:07.369 --> 00:37:10.030
and core to prior precedent or whether prior precedent is
641
00:37:10.070 --> 00:37:17.019
necessary or not. Um, you know, could Congress have, uh,
642
00:37:17.099 --> 00:37:22.019
passed a preservation statute, um, and, uh, and perhaps one
643
00:37:22.619 --> 00:37:28.320
focused on preserving these documents for posterity, maybe it could have.
644
00:37:29.320 --> 00:37:31.110
Did it? It didn't. That's not what the.
645
00:37:31.090 --> 00:37:36.130
Presidential record is about, and it's not about– it's too
646
00:37:36.429 --> 00:37:43.289
integrated with a system of getting Congress and the public
647
00:37:43.369 --> 00:37:50.769
into the mix to put the presumption towards– towards disclosure
648
00:37:50.929 --> 00:37:54.610
over the, over the objections of, of the, of the
649
00:37:54.670 --> 00:37:57.599
president who has left office and who has an interest
650
00:37:58.099 --> 00:38:02.320
in confidentiality. And, and, and, and so I think there
651
00:38:02.380 --> 00:38:07.130
are good arguments that aspects of the, of the, of the, uh,
652
00:38:07.730 --> 00:38:10.090
Presidential Records Act are unconstitutional.
653
00:38:10.570 --> 00:38:14.030
I think the question is, is there anything left to preserve?
654
00:38:14.150 --> 00:38:20.050
Can you keep the document maintenance provisions and slice off the.
655
00:38:21.409 --> 00:38:25.710
Disposition provisions? That's a difficult question. I think it.
656
00:38:25.690 --> 00:38:31.110
Probably requires more work than the OLC did, but it's...
657
00:38:33.070 --> 00:38:37.420
I think that's where the constitutional action is on this.
658
00:38:38.780 --> 00:38:39.300
The O.C.
659
00:38:39.340 --> 00:38:43.360
Opinion saying that the whole thing is unconstitutional and really
660
00:38:43.460 --> 00:38:47.719
presidential records from the top of the president to all
661
00:38:47.739 --> 00:38:51.769
the people that work around the president, that are subject
662
00:38:51.789 --> 00:38:55.050
to the Presidential Records Act, that's none of Congress's business.
663
00:38:55.110 --> 00:39:02.130
That's a very heavy lift. But probably the better course of.
664
00:39:02.190 --> 00:39:05.389
Action is dealing with some of these disposition incursions and
665
00:39:05.429 --> 00:39:07.880
seeing whether they can be disaggregated from the rest of
666
00:39:07.909 --> 00:39:10.760
the presidential record. I don't think that they probably can.
667
00:39:11.300 --> 00:39:15.219
I think what Congress probably should do is pass legislation
668
00:39:15.280 --> 00:39:18.440
that has these documents maintained and then has a more
669
00:39:18.480 --> 00:39:24.730
targeted process for making them available for congressional inspection or
670
00:39:24.889 --> 00:39:29.030
public inspection that probably will work itself out.
671
00:39:29.050 --> 00:39:31.869
You know, again, this is not the first.
672
00:39:31.699 --> 00:39:35.579
Time that post-Watergate legislation went a few steps too far.
673
00:39:37.320 --> 00:39:40.079
Maybe the OLC opinion went a few steps too far, but,
674
00:39:40.159 --> 00:39:43.239
you know, the truth of all this is likely somewhere
675
00:39:43.280 --> 00:39:46.380
in the middle. The very interesting thing about the litigation
676
00:39:47.139 --> 00:39:51.449
is that the The litigation is kind of an odd duck.
677
00:39:51.530 --> 00:39:54.829
It's going after an OLC opinion. I'm not exactly sure
678
00:39:54.849 --> 00:39:58.309
what the cause of action is, frankly. I'm pretty sure
679
00:39:58.349 --> 00:40:02.739
the OLC opinion is not final agency action. I'm not
680
00:40:03.070 --> 00:40:08.119
sure if it's really ripe for judicial resolution at this point.
681
00:40:08.960 --> 00:40:12.139
But It also seems like the executive branch isn't really
682
00:40:12.199 --> 00:40:13.739
making much of those arguments anymore.
683
00:40:13.780 --> 00:40:16.139
They want this to go to the Supreme Court. A
684
00:40:16.179 --> 00:40:17.489
very interesting strategy.
685
00:40:18.320 --> 00:40:22.769
I think they want this finally resolved at a time
686
00:40:22.789 --> 00:40:26.349
of their choosing, with a quarter of their choosing, with
687
00:40:26.409 --> 00:40:28.989
arguments of their choosing, and with the Solicitor General's office
688
00:40:29.010 --> 00:40:31.710
that's making their arguments as opposed to a subsequent administration.
689
00:40:32.889 --> 00:40:35.429
And so there's a little bit of A little bit
690
00:40:35.469 --> 00:40:38.019
of a conspiracy between plaintiffs and defendants here to get
691
00:40:38.059 --> 00:40:42.119
this thing to be decided by the court system definitively,
692
00:40:42.159 --> 00:40:44.739
and it'll be an interesting process to watch. I'd be
693
00:40:44.780 --> 00:40:47.489
happy to answer anybody's questions, and thank you very much
694
00:40:47.530 --> 00:40:48.210
for your time today.
695
00:40:49.090 --> 00:40:49.369
Great.
696
00:40:49.409 --> 00:40:51.969
Thank you for those remarks, Mike. Before we open it
697
00:40:52.010 --> 00:40:53.940
up for Q & A, I want to give Chris
698
00:40:53.960 --> 00:40:58.199
a chance to respond to anything he heard Mike say.
699
00:40:58.219 --> 00:41:00.940
And I'd be curious to hear, Chris, if you agree
700
00:41:00.980 --> 00:41:04.639
with Mike that a similar statute in the judicial context,
701
00:41:04.719 --> 00:41:10.349
applying to the judiciary, would that create separation of powers.
702
00:41:10.110 --> 00:41:13.090
Issues, or would that be permissible in your view as well?
703
00:41:14.090 --> 00:41:17.130
Okay, so four quick points, which you touched on one
704
00:41:17.150 --> 00:41:18.530
of the points I was going to address.
705
00:41:18.989 --> 00:41:19.849
So first is.
706
00:41:19.750 --> 00:41:22.570
There's a lot of discussion in the briefing, and Mike
707
00:41:22.590 --> 00:41:26.400
brought this up, about the Nixon case, the court's disposition
708
00:41:26.420 --> 00:41:28.880
of the Nixon case and the current act. Obviously, they're
709
00:41:28.900 --> 00:41:32.480
different acts, and I wouldn't say the Nixon case is
710
00:41:33.420 --> 00:41:36.300
rest judicato on this case, and it sort of completely
711
00:41:36.679 --> 00:41:40.349
disposes of the current act. But I actually think the
712
00:41:40.389 --> 00:41:43.809
Nixon precedent and Nixon statute was in many ways more
713
00:41:43.849 --> 00:41:48.650
invasive than the current statute. Nixon believed the records were his.
714
00:41:48.690 --> 00:41:49.510
And in fact, the D.C.
715
00:41:49.550 --> 00:41:52.989
Circuit later found that the presidential, I can't remember the
716
00:41:53.010 --> 00:41:54.650
name of it, the Preservation Act was.
717
00:41:54.570 --> 00:41:55.769
A taking of his property.
718
00:41:56.210 --> 00:41:59.250
So he had every expectation that these records were his property,
719
00:41:59.289 --> 00:42:02.349
whereas every president since does not have that same expectation.
720
00:42:04.070 --> 00:42:04.820
Expectation.
721
00:42:05.360 --> 00:42:08.639
So the analysis of the Nixon case in some ways
722
00:42:08.699 --> 00:42:09.679
was even more invasive.
723
00:42:09.739 --> 00:42:10.360
It was more of an.
724
00:42:10.340 --> 00:42:13.860
Infringement on Nixon's prerogatives and more of an infringement on
725
00:42:13.880 --> 00:42:17.099
his ability to execute his duties because it took records
726
00:42:17.139 --> 00:42:20.000
that he actually believed were his away from him. So
727
00:42:20.519 --> 00:42:24.599
I think that people should view that precedent in that lens. Secondly,
728
00:42:24.619 --> 00:42:28.260
I think it's important to remember, and as Mike pointed out,
729
00:42:28.920 --> 00:42:33.800
if the preservation obligations something that's constitutional, it's not really
730
00:42:33.840 --> 00:42:36.559
clear to me how much the Presidential Records Act changes
731
00:42:36.599 --> 00:42:40.239
things at that point. Congress could, of course, if former
732
00:42:40.280 --> 00:42:43.119
presidents had to preserve records, Congress would, of course, subpoena
733
00:42:43.139 --> 00:42:45.699
those records regardless of whether they're being held by the
734
00:42:45.739 --> 00:42:49.289
archivist or not. And the former president has the ability
735
00:42:49.329 --> 00:42:51.789
to assert constitutional privileges.
736
00:42:51.730 --> 00:42:52.570
In both cases.
737
00:42:52.590 --> 00:42:58.929
You know, there's still an open question about a former
738
00:42:58.969 --> 00:43:02.610
president's assertion of privilege, how that how that survives, what
739
00:43:02.650 --> 00:43:04.829
the current incumbent president.
740
00:43:04.829 --> 00:43:06.699
Is agreeing about it, disagreeing with it.
741
00:43:06.750 --> 00:43:09.639
So I'm not really sure how much the PRA changes
742
00:43:09.659 --> 00:43:15.920
in that regard. Third, the argument that this unduly impairs
743
00:43:15.940 --> 00:43:18.340
the president, I think we should remember that for 50
744
00:43:18.340 --> 00:43:20.559
years presidents have been operating consistent.
745
00:43:20.199 --> 00:43:20.940
With this scheme.
746
00:43:21.619 --> 00:43:25.099
And if anything, White Houses have dramatically increased in power.
747
00:43:25.139 --> 00:43:28.039
So it really seems like that's an empirical claim that's very,
748
00:43:28.559 --> 00:43:29.480
very difficult to credit.
749
00:43:29.860 --> 00:43:30.719
Finally, the courts.
750
00:43:32.010 --> 00:43:34.719
I mean, obviously, everyone hates when you respond to hypothetical with,
751
00:43:34.780 --> 00:43:37.239
it's a different case. But in this case, it very
752
00:43:37.280 --> 00:43:38.619
much is a different case.
753
00:43:40.360 --> 00:43:42.260
You know, for one, the.
754
00:43:44.099 --> 00:43:47.380
Necessary and proper arguments for why Congress could enact this,
755
00:43:47.460 --> 00:43:50.469
like the same continuity issues aren't quite as important as
756
00:43:50.510 --> 00:43:53.670
the court. You have a rotating membership of nine justices,
757
00:43:53.710 --> 00:43:55.349
such that access to records are very different.
758
00:43:57.389 --> 00:43:58.849
I think there.
759
00:43:58.730 --> 00:44:02.030
Could be different congressional arguments, power arguments, and also the
760
00:44:02.070 --> 00:44:05.010
separation of powers analysis, what is infringing on other branches'
761
00:44:05.070 --> 00:44:08.969
prerogatives is very, very different between the executive branch and
762
00:44:09.010 --> 00:44:13.099
the Supreme Court. Draft messages being shared by the justices,
763
00:44:13.539 --> 00:44:16.860
provided they had the power to assert their constitutional privileges
764
00:44:16.940 --> 00:44:20.000
over those, that would be analogous to the Presidential Records Act.
765
00:44:20.039 --> 00:44:22.260
So I think it's just a very different situation. It
766
00:44:22.780 --> 00:44:25.219
would really depend on how Congress legislated.
767
00:44:24.719 --> 00:44:25.380
In that area.
768
00:44:25.400 --> 00:44:29.099
I think the public and the nation has an interest
769
00:44:29.139 --> 00:44:32.659
in the preservation of Supreme Court records. So Congress probably
770
00:44:32.679 --> 00:44:34.989
does have some ability to preserve those, but it would
771
00:44:35.030 --> 00:44:38.840
really depend on sort of highly required to be preserved,
772
00:44:38.900 --> 00:44:40.699
what sort of access was made available, and what sort
773
00:44:40.719 --> 00:44:44.010
of ability the justices had to protect records that would
774
00:44:44.030 --> 00:44:47.630
be covered by privilege. So I think it's a nice
775
00:44:47.650 --> 00:44:49.550
debater's point to make in this case, but it really
776
00:44:49.570 --> 00:44:52.670
feels like a very different case to me in terms
777
00:44:52.750 --> 00:44:55.530
of its actual constitutional implications.
778
00:44:58.000 --> 00:44:58.280
Great.
779
00:44:58.500 --> 00:44:59.239
Thanks for that, Chris.
780
00:44:59.820 --> 00:45:02.739
And I remind everyone watching, if you have any questions,
781
00:45:03.219 --> 00:45:05.550
please drop those in the Q & A box, and
782
00:45:05.590 --> 00:45:08.949
I'm happy to pass those along to our panelists. While
783
00:45:08.969 --> 00:45:11.849
it waits for some more questions to come in, one
784
00:45:11.869 --> 00:45:14.409
of the other things that neither of you touched on today,
785
00:45:14.449 --> 00:45:19.150
but I'm curious, how does the current enforcement mechanisms work
786
00:45:19.230 --> 00:45:23.019
for the Presidential Records Act if there are violations? And
787
00:45:23.039 --> 00:45:25.599
does that factor into any of the analysis that you've
788
00:45:25.619 --> 00:45:29.050
talked about so far? If it's okay, maybe I'll kick
789
00:45:29.090 --> 00:45:30.849
it over to Mike, and then we can come back to.
790
00:45:30.829 --> 00:45:31.230
You, Chris.
791
00:45:33.570 --> 00:45:37.179
Well, I suppose some of the attempted enforcement of the
792
00:45:37.360 --> 00:45:40.599
Presidential Records Act led to the OLC opinion, because we
793
00:45:40.639 --> 00:45:48.929
have an administration that was annoyed with how the preservation
794
00:45:49.010 --> 00:45:52.690
obligations were attempted to be enforced by the archivist after
795
00:45:52.769 --> 00:45:57.110
the end of the last Trump administration. But, you know, yeah,
796
00:45:57.219 --> 00:46:00.739
I think that goes to the problem of the Presidential
797
00:46:00.800 --> 00:46:01.480
Records Act.
798
00:46:01.559 --> 00:46:05.590
Right. I mean, absent the Presidential Records Act.
799
00:46:06.280 --> 00:46:11.179
The default is that these materials would stay confidential unless
800
00:46:12.219 --> 00:46:15.199
the president and then.
801
00:46:15.239 --> 00:46:17.139
The former president decided to.
802
00:46:18.460 --> 00:46:21.719
Make them public or Congress asked for them in a
803
00:46:21.760 --> 00:46:25.480
targeted way and chose to disclose them.
804
00:46:25.519 --> 00:46:28.320
And in the event that Congress.
805
00:46:30.260 --> 00:46:35.170
That request was denied, there would be a process of negotiation.
806
00:46:35.210 --> 00:46:40.210
I mean, this sets the default towards disclosure to a
807
00:46:40.250 --> 00:46:44.659
coordinate branch of government, Congress, and sets the default towards
808
00:46:44.719 --> 00:46:51.159
disclosure to the public on a timeline and short circuits
809
00:46:51.199 --> 00:46:56.699
that accommodation process. I think if that reverse presumption were
810
00:46:56.760 --> 00:47:00.480
applied to any other branch of government, there would be
811
00:47:00.539 --> 00:47:02.500
cries of foul.
812
00:47:03.139 --> 00:47:06.199
And the reason why it made sense after Watergate is.
813
00:47:06.159 --> 00:47:08.559
That, well, you know, everybody kind of thought the president
814
00:47:08.619 --> 00:47:11.420
was a bad guy and, you know, sunlight is the
815
00:47:11.500 --> 00:47:13.800
best disinfectant and all that kind of stuff, right?
816
00:47:13.909 --> 00:47:19.920
But that kind of bad period of our history that
817
00:47:19.980 --> 00:47:20.960
was dealt with through.
818
00:47:20.820 --> 00:47:29.420
Resignation doesn't defeat the structural point that each branch has
819
00:47:30.639 --> 00:47:38.239
a pretty intense interest in confidentiality. And I disagree that
820
00:47:38.460 --> 00:47:43.360
the PRA is not chilling. It certainly does affect not
821
00:47:43.440 --> 00:47:47.650
only the content But certainly the form of the in
822
00:47:47.670 --> 00:47:53.670
the manner of communications inside the White House, because because,
823
00:47:53.710 --> 00:47:56.989
you know, when you're writing inside the White House, you
824
00:47:57.070 --> 00:47:58.739
are writing for posterity.
825
00:47:58.840 --> 00:48:00.059
And, you know, look at that.
826
00:48:00.579 --> 00:48:05.639
That tightens everybody's up. That that constricts the that constricts
827
00:48:05.719 --> 00:48:10.409
the blood vessels. And it is an issue and it
828
00:48:10.469 --> 00:48:13.369
should be an issue that, you know, each president decides
829
00:48:13.409 --> 00:48:14.159
in his own way.
830
00:48:14.239 --> 00:48:15.099
And for and for.
831
00:48:15.099 --> 00:48:22.090
200 years, it kind of worked itself out, right? Now,
832
00:48:22.119 --> 00:48:26.710
I'm not suggesting that everybody should be shoveling documents into
833
00:48:26.809 --> 00:48:28.409
the blast furnace here on their way out.
834
00:48:28.469 --> 00:48:30.409
No, that shouldn't be it at all.
835
00:48:30.929 --> 00:48:34.840
Again, if this were just a preservation statute, I don't
836
00:48:34.880 --> 00:48:36.699
think there'd be much of an argument here, but it's
837
00:48:36.780 --> 00:48:42.679
not that. It's something that has a presumption against the
838
00:48:42.719 --> 00:48:46.860
confidentiality communications within one branch and even at the very
839
00:48:46.940 --> 00:48:48.019
top of one branch.
840
00:48:48.119 --> 00:48:50.760
And whatever arguments might.
841
00:48:51.769 --> 00:48:56.730
Justify presumption against confidentiality at some of the outer rings
842
00:48:56.769 --> 00:48:59.329
of one branch, right at the top, I think that's
843
00:48:59.389 --> 00:49:00.389
a hard thing to sustain.
844
00:49:01.590 --> 00:49:01.829
Right.
845
00:49:02.409 --> 00:49:04.769
Just four points on that. I mean, I don't think
846
00:49:04.809 --> 00:49:08.210
NARA has any real enforcement mechanisms. I guess there's like
847
00:49:08.309 --> 00:49:11.369
a naming and shaming type thing, if there's records they
848
00:49:11.389 --> 00:49:16.889
can't find, et cetera. But, and Congress has done investigations
849
00:49:16.929 --> 00:49:20.860
into CRA compliance, PRA compliance before, so. I think that
850
00:49:20.880 --> 00:49:24.079
there are those enforcement mechanisms, but I actually, I'm not
851
00:49:24.320 --> 00:49:26.539
sure that other enforcement mechanisms might be possible.
852
00:49:27.340 --> 00:49:30.630
Just a couple other points in response to points that
853
00:49:30.670 --> 00:49:31.130
Mike made.
854
00:49:32.150 --> 00:49:35.250
One is on the chilling effect in how you write
855
00:49:35.289 --> 00:49:36.030
things differently.
856
00:49:36.050 --> 00:49:40.840
I mean, you know, I don't think that the federal.
857
00:49:40.579 --> 00:49:43.300
Courts are writing things that are super incendiary because I
858
00:49:43.320 --> 00:49:45.099
don't think people are going to be writing them or
859
00:49:45.119 --> 00:49:47.630
reading them in the future. I think the federal record,
860
00:49:47.650 --> 00:49:49.650
you're often writing for posterity when you're in these types
861
00:49:49.690 --> 00:49:53.730
of jobs and giving advice that's directly going to the president. So,
862
00:49:53.750 --> 00:49:58.190
you know, Fair point that there is a theoretical chill,
863
00:49:58.250 --> 00:50:00.760
but in terms of empirically what that delta is between
864
00:50:00.780 --> 00:50:02.980
a world without the PRA and a world with the PRA,
865
00:50:03.039 --> 00:50:06.179
I think it's very, very difficult to see that there
866
00:50:06.199 --> 00:50:06.739
might be much.
867
00:50:07.650 --> 00:50:08.389
Three is.
868
00:50:11.840 --> 00:50:13.340
You could envision.
869
00:50:12.920 --> 00:50:16.000
Scenarios where down the road, five years, 12 years, when
870
00:50:16.039 --> 00:50:18.119
they're available to the public or if Congress makes a request,
871
00:50:18.639 --> 00:50:21.699
that the situation could arise where records of a president
872
00:50:22.260 --> 00:50:25.320
would have a reasonable argument, should be protected. They would
873
00:50:25.360 --> 00:50:27.730
want to make those claims and the incumbent, for whatever reasons,
874
00:50:28.150 --> 00:50:30.570
may not have the institutions of the interest of the
875
00:50:30.610 --> 00:50:33.929
branch at interest and may have, you know, shorter term
876
00:50:33.949 --> 00:50:36.289
political reasons why they don't back up a former president's claim.
877
00:50:36.949 --> 00:50:40.420
I mean, one, presidents can assert their privileges and hope
878
00:50:40.440 --> 00:50:44.239
that the incumbent backs up, and two, they can go
879
00:50:44.280 --> 00:50:47.719
to court and make those arguments as well. So it
880
00:50:48.519 --> 00:50:51.159
isn't like Congress threw these records to the wolves. I
881
00:50:51.159 --> 00:50:56.070
think they actually created a scheme that does recognize the
882
00:50:56.090 --> 00:50:58.789
president's prerogatives. You can argue if the balance isn't exactly
883
00:50:58.809 --> 00:51:01.469
in the right place, but that hardly seems like a
884
00:51:01.510 --> 00:51:04.420
reason to say that the Records Act is unconstitutional to
885
00:51:04.429 --> 00:51:06.639
apply to everyone who sits in the White House. And
886
00:51:06.659 --> 00:51:14.239
then finally, the implied premise of the OLC opinion– and Mike,
887
00:51:14.260 --> 00:51:18.110
I think, has said that they're– I think rightfully said
888
00:51:18.130 --> 00:51:19.590
that the government has pulled back from some of these
889
00:51:19.630 --> 00:51:23.030
arguments– seems to be the Nixon statue was probably okay
890
00:51:23.050 --> 00:51:26.210
because there was evidence that there was wrongdoing.
891
00:51:25.829 --> 00:51:31.789
In Nixon's case. But it obviously can't be the.
892
00:51:30.510 --> 00:51:32.590
Case that Congress has to wait for evidence of wrongdoing
893
00:51:32.909 --> 00:51:35.280
to pass a statute to protect the records that are
894
00:51:35.300 --> 00:51:35.820
evidence of that.
895
00:51:35.739 --> 00:51:37.119
Wrongdoing, because by then it's too late.
896
00:51:37.159 --> 00:51:39.960
So there has to be some ability here for Congress
897
00:51:40.019 --> 00:51:43.980
to preserve the records. I think the access— you know, there
898
00:51:44.000 --> 00:51:46.440
might be as-applied cases in which there are very difficult
899
00:51:46.659 --> 00:51:53.690
questions about whether presidential privileges should cover them, but— rather
900
00:51:53.730 --> 00:51:56.869
than when you challenge a statute facially, having to show
901
00:51:56.909 --> 00:51:59.570
it's unconstitutional in all its applications.
902
00:51:59.610 --> 00:52:00.670
I think that's saying that.
903
00:52:00.849 --> 00:52:03.489
It's constitutional in almost all its applications or almost all
904
00:52:03.530 --> 00:52:05.719
it does, except for a very tiny sliver of it.
905
00:52:07.010 --> 00:52:08.670
Well, I do think one of the things I think
906
00:52:08.730 --> 00:52:12.250
is interesting about your Questions Act that just occurred to
907
00:52:12.289 --> 00:52:15.570
me is, you know, what are the enforcement mechanisms? Well.
908
00:52:18.010 --> 00:52:21.949
Maybe the enforcement mechanism is Congress acting on the executive branch. Look,
909
00:52:22.010 --> 00:52:24.429
you really need to comply with the Presidential Records Act.
910
00:52:24.449 --> 00:52:26.880
You don't do that. I'm going to withhold your funding.
911
00:52:26.920 --> 00:52:32.019
I'm going to impeach your officers. I'm going to call
912
00:52:32.039 --> 00:52:32.719
people in for.
913
00:52:32.639 --> 00:52:33.420
Hearings, right?
914
00:52:33.980 --> 00:52:37.590
But the funny thing is, right, you have this lawsuit
915
00:52:37.630 --> 00:52:40.269
right now that's trying to enforce the Presidential Records Act,
916
00:52:40.309 --> 00:52:41.909
and that's brought by private parties.
917
00:52:42.900 --> 00:52:43.500
Individuals.
918
00:52:43.599 --> 00:52:47.280
So they're asserting essentially that there's a private right of
919
00:52:47.380 --> 00:52:50.579
action to enforce the Presidential Records Act. And I don't
920
00:52:50.619 --> 00:52:53.090
know how much the Justice Department is doing to say, no,
921
00:52:53.309 --> 00:52:56.630
there isn't, right? Which is, if something that could be
922
00:52:56.730 --> 00:53:00.829
said about the Presidential Records Act, it's that, well, maybe
923
00:53:00.889 --> 00:53:04.670
the branches will just work itself out. But here, the
924
00:53:04.710 --> 00:53:09.250
executive branch is allowing private individuals to it at a
925
00:53:09.269 --> 00:53:13.539
very early stage. And that probably makes the Presidential Records
926
00:53:13.639 --> 00:53:18.579
Act more problematic from a separation of powers standpoint. But
927
00:53:18.639 --> 00:53:22.829
it's not an argument that the Justice Department is spending
928
00:53:22.849 --> 00:53:23.480
a lot of time on.
929
00:53:23.510 --> 00:53:26.809
They're spending more time on the merits, which is interesting.
930
00:53:28.360 --> 00:53:30.719
Well, we have about seven minutes left, and I did
931
00:53:31.300 --> 00:53:33.860
hope you would respond to one other thing Chris said, Mike.
932
00:53:34.559 --> 00:53:37.699
Chris mentioned, and we had a question in the comments
933
00:53:37.739 --> 00:53:42.090
to this effect as well, even if the PRA didn't exist,
934
00:53:42.170 --> 00:53:46.190
would you agree with Chris that Congress could still subpoena.
935
00:53:45.650 --> 00:53:47.309
Documents from former presidents?
936
00:53:47.710 --> 00:53:50.690
And then how, in your view, would that impact the
937
00:53:50.750 --> 00:53:55.010
constitutionality or the analysis of whether the PRA is constitutional?
938
00:53:56.190 --> 00:53:58.190
Yeah, I don't know that I can see the comments,
939
00:53:58.250 --> 00:53:59.480
but I'll take your word for it.
940
00:54:00.130 --> 00:54:05.849
So I think that that point points towards the way
941
00:54:05.869 --> 00:54:07.949
it's supposed to work. Like if we just had a
942
00:54:08.010 --> 00:54:12.969
statute that preserved presidential records and they were in a
943
00:54:13.010 --> 00:54:16.070
presidential library someplace or with the archivists at the outgoing
944
00:54:16.110 --> 00:54:18.929
president's option, and then they could be subpoenaed by Congress,
945
00:54:20.070 --> 00:54:24.809
that would work. obviously, a subpoena that says, well, I'll
946
00:54:24.829 --> 00:54:26.829
just take all of those, please, would not work.
947
00:54:27.309 --> 00:54:29.250
The Congress would need to be targeted.
948
00:54:29.309 --> 00:54:35.559
They need to express a specific and demonstrable legislative need,
949
00:54:35.699 --> 00:54:38.380
and they would need to show that these records are
950
00:54:38.420 --> 00:54:40.559
the only way to address.
951
00:54:40.219 --> 00:54:41.780
That legislative need.
952
00:54:41.800 --> 00:54:50.309
All closer to the accommodation process that governed these affairs
953
00:54:50.809 --> 00:54:52.320
since the time of George Washington.
954
00:54:52.960 --> 00:54:54.260
Congress asked for too much.
955
00:54:54.800 --> 00:54:57.300
The executive branch comes back and says, well, maybe not
956
00:54:57.360 --> 00:54:58.559
all that, but here's something.
957
00:54:58.659 --> 00:55:00.699
Is this enough? They say, no, it's not enough, and
958
00:55:00.719 --> 00:55:03.659
they work it out, right? The problem with the Presidential.
959
00:55:03.210 --> 00:55:07.090
Records Act is that's the presumption towards full disclosure to
960
00:55:07.130 --> 00:55:08.289
Congress and to the public.
961
00:55:08.389 --> 00:55:12.119
And, you know, that— that That.
962
00:55:11.719 --> 00:55:17.039
Particular point by Chris kind of epitomizes the separation of
963
00:55:17.079 --> 00:55:22.280
powers problem, and I would say it's not a defect
964
00:55:22.340 --> 00:55:26.340
in my argument. It's a demonstration that my argument is right.
965
00:55:28.199 --> 00:55:30.380
Well, we have about five minutes left, and I want
966
00:55:30.400 --> 00:55:32.400
to be sure each of you have a chance to
967
00:55:32.460 --> 00:55:36.219
share any final thoughts with everyone on the webinar today.
968
00:55:37.050 --> 00:55:39.510
So if it's okay, Chris, maybe I'll come to you
969
00:55:39.530 --> 00:55:41.429
for final thoughts, and then Mike will give you the
970
00:55:41.469 --> 00:55:43.670
last word before we end our call today.
971
00:55:44.289 --> 00:55:45.449
So Chris, over to you.
972
00:55:46.210 --> 00:55:48.940
No, I think Mike and I have kind of laid
973
00:55:48.980 --> 00:55:51.719
out the two sides of the argument here. I think
974
00:55:52.139 --> 00:55:56.019
actually it sounds like there's wide areas of agreement about
975
00:55:56.079 --> 00:56:00.639
the ability of the constitutionality of preservation obligations and the
976
00:56:00.679 --> 00:56:07.090
constitutionality of this regime as applied to folks in the
977
00:56:07.110 --> 00:56:09.480
White House who aren't kind of in a circle of
978
00:56:09.519 --> 00:56:14.300
the presidency. You know, I've described why I think Congress
979
00:56:14.320 --> 00:56:17.360
has the authority to do this and why past history
980
00:56:18.659 --> 00:56:22.659
pretty clearly demonstrates that it's not an undue infringement on
981
00:56:22.679 --> 00:56:24.659
the White House, but the courts will now sort this out.
982
00:56:24.840 --> 00:56:27.639
And I appreciate you, Zach, for having me and the
983
00:56:27.679 --> 00:56:30.019
federal side for having me. And we'll see what happens
984
00:56:30.039 --> 00:56:30.440
in the courts.
985
00:56:31.320 --> 00:56:32.079
Great. Thank you.
986
00:56:32.300 --> 00:56:33.119
Mike, over to you.
987
00:56:34.519 --> 00:56:36.719
Yes, thank you, Zach.
988
00:56:37.219 --> 00:56:39.210
Chris and I do agree about a lot of things,
989
00:56:39.269 --> 00:56:43.289
and I think one of them is that we might
990
00:56:43.349 --> 00:56:47.179
both disagree with this iteration of the Office of Legal
991
00:56:47.219 --> 00:56:50.840
Counsel that Congress has no business in the world of
992
00:56:50.920 --> 00:56:54.400
presidential records. I that that's probably a bridge too far,
993
00:56:54.860 --> 00:56:58.050
but it's not a bridge that people need to cross
994
00:56:58.119 --> 00:57:03.969
to have problems with the Presidential Records Act. I think
995
00:57:04.010 --> 00:57:07.530
that the incursions with respect to the disposition of presidential
996
00:57:07.570 --> 00:57:11.239
records are so closely integrated in the Presidential Records Act.
997
00:57:11.139 --> 00:57:12.780
That they're hard to pull apart.
998
00:57:13.820 --> 00:57:16.760
I think it's hard to salvage just the preservation provisions
999
00:57:16.820 --> 00:57:18.820
of the PRA. I think I think it was a
1000
00:57:18.840 --> 00:57:21.889
good argument that the whole thing is unconstitutional as a result.
1001
00:57:22.590 --> 00:57:26.530
I think Congress probably should pass a, if it wants,
1002
00:57:27.610 --> 00:57:31.030
a preservation statute that is.
1003
00:57:30.949 --> 00:57:33.429
Going to apply to most documents.
1004
00:57:33.510 --> 00:57:35.480
I mean, I think in the lion's share of cases,
1005
00:57:35.500 --> 00:57:38.360
you know, these documents are going to be available for
1006
00:57:38.420 --> 00:57:40.840
posterity in the years ahead.
1007
00:57:41.860 --> 00:57:42.460
If you had a.
1008
00:57:42.780 --> 00:57:48.019
Good preservation scheme, it'll do a better beach reading about
1009
00:57:48.460 --> 00:57:54.769
administrations of our youth, right? But the flip in favor
1010
00:57:54.829 --> 00:57:57.750
of Congress getting whatever they want from a coordinate branch government,
1011
00:57:57.769 --> 00:58:00.449
I think it'd be intolerable if it were applied the
1012
00:58:00.489 --> 00:58:04.369
other way. We talked about the the Judicial Records Act,
1013
00:58:04.389 --> 00:58:08.369
the Hypothesized Judicial Records Act a bit. We did not
1014
00:58:08.409 --> 00:58:13.530
talk about as much the Hypothesized Legislative Records Act a bit,
1015
00:58:13.630 --> 00:58:17.429
which none of those people would agree to if the
1016
00:58:17.489 --> 00:58:20.260
shoe were on the other foot and it were one
1017
00:58:20.300 --> 00:58:23.659
of the other branches trying to obtain information about what
1018
00:58:23.699 --> 00:58:26.059
the legislative branch were doing in the name of the people.
1019
00:58:28.699 --> 00:58:31.989
And so I think there's a I think there's a
1020
00:58:32.050 --> 00:58:36.269
responsible piece of legislation here that could be passed. I
1021
00:58:36.289 --> 00:58:42.119
think a trimmed-down PRA would work, but the Presidential Records Act,
1022
00:58:42.239 --> 00:58:46.800
as drafted, has separation of powers issues, just like many
1023
00:58:46.840 --> 00:58:49.559
other pieces of legislation that were passed after Watergate, too.
1024
00:58:50.400 --> 00:58:52.840
It's not a new story, and it's not a surprise.
1025
00:58:54.909 --> 00:58:56.789
Well, thank you for that overview, and thank you for
1026
00:58:56.809 --> 00:59:00.369
the great discussion, Chris and Mike. It's been a fascinating conversation.
1027
00:59:00.409 --> 00:59:03.030
I'm sure we could keep going for a lot longer
1028
00:59:03.070 --> 00:59:05.829
than we had today, but thank you both for joining
1029
00:59:05.889 --> 00:59:08.630
us for the conversation. Thank you to the Federalist Society
1030
00:59:08.690 --> 00:59:11.739
for hosting this conversation. And thank you to everyone who
1031
00:59:11.780 --> 00:59:15.969
tuned in to watch it. And with that, Boone, I'll
1032
00:59:15.989 --> 00:59:17.710
turn the floor back over to you to close us
1033
00:59:17.789 --> 00:59:18.150
out today.
1034
00:59:19.030 --> 00:59:19.269
Sure.
1035
00:59:19.289 --> 00:59:21.349
I just wanted to thank all of our panelists for
1036
00:59:21.369 --> 00:59:23.969
sharing their expertise and opinions on this important issue.
1037
00:59:23.989 --> 00:59:25.550
And thank you, Zach, for moderating.
1038
00:59:26.449 --> 00:59:28.630
If the audience is interested in learning more about all
1039
00:59:28.670 --> 00:59:33.349
the Federalist Society's programming, please visit their website at fedsoc.org.
1040
00:59:33.949 --> 00:59:35.250
And with that, we are adjourned.
1041
00:59:36.090 --> 00:59:39.880
Thanks for listening to FedSoc Forums, a Federalist Society podcast.
1042
00:59:40.260 --> 00:59:42.780
Be sure to subscribe wherever you get your podcasts so
1043
00:59:42.820 --> 00:59:47.219
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