Archives’ Politicization Portends Another Russiagate
by John D. O’Connor
The following is an article originally published on American Greatness. Read it HERE.
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If the Russiagate fiasco proved anything, it is that slimy but clever beats straight but blundering, at least in the political short term. Unfortunately, the oleaginous tactics of the Biden Administration regarding former President Donald Trump’s statutorily protected presidential papers, combined with its politicization of what should be a neutral, nonpartisan National Archives and Records Administration (NARA), follows the temporarily successful Russiagate playbook. And as in the “Russia collusion” hoax, the media feeds the frenzy of its credulous naïf audience, using the shiny object of a few straggling classified documents out of millions, importance unknown.
More significantly, the media is concealing from the public the clear provisions of the Presidential Records Act (PRA), which, if read with critical intelligence, reveals the sickening politicization of the Archives which, like the FBI, is tasked to be neutral and nonpartisan.
For two hundred years, until Richard Nixon sought to destroy unflattering White House tapes, former presidents owned their presidential papers, classified and unclassified, after leaving office, willing them to their heirs or putting them in trust.
The 1978 PRA attempted to keep the status quo, with the exception that the government now owned the documents, with the Archives serving as a faithful librarian.
A former president has unfettered access to his documents for up to 12 years, while the sitting president and Congress have no access, unless the incumbent can show, per section 2205 (B) (2), that “such records contain information that is needed for the conduct of current business of the incumbent President’s office and that is not otherwise available.”
But whether or not the incumbent president can see these documents, the former president is assured by the PRA of access to all his papers: “The presidential records of a former President shall be available to such former President or the former President’s designated representatives.”
Those two simple statements are at the heart of the case that the Archives has been politicized and that the Biden Administration has weaponized this politicization. Both have acted shamefully, but our vaunted “investigative” media, of course, has not noticed. Don’t we have swarms of wannabe Woodwards and Bernsteins?
It is the duty of the Archives not to provide such access unless the requisite showing has been made. Because this exception requires a showing that the sitting president cannot get the information elsewhere and that it is needed for the current (i.e., already existing) business of the incumbent’s office, this should pose a high burden.
Therefore, the Archives, if doing its duty, should actively scrutinize any request for the enshrined documents of the former president, and should protect them from depredation by those not entitled to see them.
As of late 2021 and early 2022, the Archives already had 100 million digitized presidential papers of former President Trump. When the Archives asked for the few boxes of non-digitized papers Trump still held, the former president reportedly asked in exchange to see, as was his right, his digitized presidential papers related to Russiagate. According to the New York Times, the Archives refused to let Trump see his own presidential records, on the grounds that they were too sensitive, leading Trump to believe that once he gave up key records, he would not get to see them again. Nothing in the PRA allows this blatant dereliction of duty, clearly politicized against Trump, keeping from him documents to which the law says he has continuing, largely exclusive, access.
Despite this breach, Trump turned over the lion’s share of the few documents he held, comprising 15 boxes. Rather than acknowledging Trump’s cooperation and probing as to any remaining documents, the Archives White House liaison—clearly politicized by proximity to power—and not the chief librarian, the head of the Records office, wrote a February 2022 letter to the Department of Justice asking them to assess any harm caused by improper maintenance of these records.
Why? As the letter noted, the few classified documents Trump turned over were “intermixed” with unclassified documents, and some classified documents were “unfoldered.” These claims should not cause the clutching of one’s pearls. There is nothing shocking or criminal about these facts, and it was none of the Archives’ statutory business to report it.
The Archives wrote this correspondence, rather than simply performing its PRA duties, so as to give the Biden White House a basis for asking that the Archives give its Trump cache to the FBI, a transfer clearly not authorized by the PRA.
But the Archives director rolled over for the White House, part of a clearly pre-arranged two-step, and agreed to provide them. Yet, contrary to the director, there was no showing that “current business” of the government required this information, unless, one could explain using circular logic, that “current business” is that which NARA had just conjured up with its faux-outraged referral letter.
If NARA thought at the time that Trump had not given it all his documents, it could legitimately bring in the Justice Department for a civil suit if negotiations failed. But that is not what happened. Well before the Mar-a-Lago raid, the FBI opened a criminal case, without basis, and obtained a criminal grand jury subpoena, an animal far different from a subpoena in a civil action, which would have been all conceivably needed.
Although it could have done so, the Justice Department never attempted to enforce this criminal subpoena but instead chose the draconian procedure of a search warrant. Why? Because subpoena enforcement would have yielded only the handful of classified documents remaining.
Because the pretextual basis for the search was the withheld classified documents, there was no need for the Justice Department, though the FBI, to search and seize all unclassified records, clearly an overbroad warrant.
And because a criminal investigation had been ginned up, the FBI could now claim that it needed to keep all the documents exclusively for its criminal case, preventing the former president from seeing his own documents, as seemingly guaranteed by the PRA.
So, now a politicized Archives, together with a politicized Justice Department and FBI, has turned the PRA on its head. Biden’s Administration has Trump documents to which the PRA gives it no right, while it deprives Trump of documents to which he has an unqualified right under the PRA.
This is a replay of Russiagate and a reprise of the media’s complicity in a coverup proceeding apace, driven by sensational irrelevancies. Why haven’t the elite media journalists reported on the provisions of the applicable statute, the PRA? What, the PRA? Golly, who knew?
Of course, as the saying goes, you can’t fool all the people all the time. Applying that maxim, once again as in Russiagate, a substantial portion of the citizenry is sensing now, and will conclude more strongly in time, that its government is not acting fairly or legally. That conclusion will be the bitter harvest of yet another sickening politicization of the bureaucracy, which is supposed to serve us all, but in fact keeps the corrupt few in power, to the detriment of the many.
Perhaps legacy media competence will emerge to critically report this tableau, but don’t count on it.
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John D. O’Connor is a former federal prosecutor and the San Francisco attorney who represented W. Mark Felt during his revelation as Deep Throat in 2005. O’Connor is the author of the book, The Mysteries of Watergate: What Really Happened .