Suit to Force Trump to Preserve White House Records

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1:31This is Bloomberg Law with June Grosso from Bloomberg Radio. You might remember back in September of 2022 when President Donald Trump insisted he had declassified the boxes of documents he took with him to Mar-a-Lago by thinking about it. If you're the president of the United States, you can declassify just by saying it's declassified, even by thinking about it, because you're sending it to Mar-a-Lago or to wherever you're sending it. And there doesn't have to be a process. There can be a process, but there doesn't have to be. You're the president. You make that decision. So when you send it, it's declassified.

2:13I declassified everything. Lawyers for the National Archives spent more than a year trying to retrieve the documents that included records Trump was supposed to turn over to NARA in accordance with the Presidential Records Act. For example, a letter to Trump from North Korean leader Kim Jong-un and a letter President Obama left for Trump. But now, the Department of Justice's Office of Legal Counsel has written an opinion saying that Trump doesn't have to comply with the nearly 50-year-old law governing the handover of presidential records to the National Archives. basically saying that Trump can keep them.

2:54Well, the American Historical Association and American Oversight say there's no legal basis for that OLC opinion, and they're suing to get a court to declare that the Presidential Records Act is constitutional and to block Trump from using the OLC opinion to keep the records. My guest is Allison Dreisen, General Counsel for the American Historical Association. Allison, tell us about the Presidential Records Act and why it's important. Sure. As a representative of the American Historical Association, I'm going to give a little history first. The first act that really dealt with this was something called the Presidential Recordings and Materials Preservation Act.

3:38And that was passed by Congress after Watergate when President Nixon sort of threatened to take all of his records with him, while the special prosecutor was in fact still investigating issues that had arisen during his administration. So Congress passed the act, I referenced, requiring Nixon to turn over all of his documents and recordings to the administrator of general services. And of course, he immediately turned ran and sued. The case went up to the Supreme Court, and the Supreme Court, 7 to 2, said the law was constitutional. It was not an unconstitutional infringement on the rights of the executive, and upheld the act and required Nixon to comply with it, which he did.

4:24So four years later, 1978, Congress then passed a subsequent act called the Presidential Records Act, which was to apply to all presidents, not just Nixon, and essentially required the same things, although So instead of records having to be delivered to the General Services Administration, they went to NARA, the National Archives and Records Administration, which, and this is relevant, is actually part of the executive branch. So these are not giving records to Congress or anybody else. It stays within the executive branch. And then there are regulations on how, if at all, they get released. So tell us why your group and American Oversight are suing.

5:06So on April 1st, I guess there could be some interpretation that this was an April Fool's joke, but I think it actually wasn't. The Office of Legal Counsel came out with an opinion that stated that the Presidential Records Act is unconstitutional. Now, I am not a litigator, but I do not believe that the Justice Department gets to determine what is constitutional and what is not. They didn't challenge this in any court. They just said it's not constitutional, and therefore the Trump administration and the relevant parts of the Trump administration, which are covered by the Presidential Records Act, no longer need to comply with it.

5:47And that includes things like the National Security Council and other parts of the executive branch that would otherwise be covered. Not only do they not need to comply, but that NARA has no obligation to keep the records it's currently holding secure. I read that the White House counsel asked the OLC for an opinion on the constitutionality of the Presidential Records Act. Do we have any knowledge about why they decided at this point to ask for this? I mean, we know that in his first term, President Trump was known to rip up documents and aides pasted them back together. And of course, he took boxes and boxes of documents with him to Mar-a-Lago.

6:31But do we know why they might be asking for this OLC opinion now? No, that would be pure speculation on my part. What they said at some point was that the counsel's office was being overwhelmed with questions about compliance with the act. So they decided to determine you don't have to comply and therefore we don't have to answer the questions. According to your lawsuit, the memo doesn't rely on any judicial decisions or precedent. That is correct. It's a 50-page memo. So there were opinions. So there was something cited in it. Most of the ones that I saw were basically articles or, you know, theoretical, speculative articles that would describe why there would be a problem with it.

7:20And in terms of the Supreme Court case that you would think would be presidential, the bottom line was they said it was just wrong. That Supreme Court case is basically the only case on the Presidential Records Act, or are there others? So for 45 years, essentially, it has been adhered to and has never been challenged. Do you consider that this follows the broad push the Trump administration has been making to concentrate power in the executive branch? Well, that's kind of an interesting question, because, as I said, what this act requires is that the records be turned over to NARA. NARA is, in fact, part of the executive branch.

8:01And therefore, although there were things in the opinion that seemed to imply that this was somehow going to give Congress the right to have access to these records that they would otherwise not have the right to, that's actually not what the statute requires. If Congress wants them, they have to go through the same request procedure that any member of the public would need. So it may have been in somebody's mind an attempt to add power to the executive branch, but in fact, that was unnecessary because, as I said, it's the executive branch that controls the records in the first place. Is there any enforcement mechanism for the Presidential Records Act?

8:41Well, you can sue for violation the way it was done down in Florida unsuccessfully after the first Trump administration. And that is why we filed for a preliminary injunction. Tell us what the basis for the preliminary injunction is. So what the AHA and American Oversight are concerned about is not only that this would give the president the right to destroy records, his own records, right? But it also says that NARA does not have to abide by the restrictions of the Presidential Records Act for those records it is holding of other presidential administrations. So, you know, they could selectively go through and destroy some records from the Obama administration to make it look like they had considered the wrong thing, you know, whatever.

9:32If you control the records, you control the history. And this gives them essentially unfettered power to do that. Obviously, this is the kind of situation, once you've ripped up a document, it's gone. Once you've erased the tape by and large, it's gone. So it's, to me, not being a litigator, sort of the perfect instance where a preliminary injunction would be absolutely appropriate. Now, interestingly, our attorneys approached the Department of Justice and said, can we agree, can we stipulate that the administration will not destroy any records until this is adjudicated? And they refused to agree to that, which is why we thought a preliminary injunction was kind of the way to go.

10:15What might be the ripple effects if this OLC opinion is upheld? Well, I mean, again, I represent the American Historical Association. Our members use these records for research, for reviewing historical events and trying to understand how we came up to be in the position that we were for those events. One of the rationales for the act, frankly, was as well that you want future presidents, right, to be able to go back and look at the history of decisions to understand why we have relations with other countries based on things in, you know, the national security interests, whatever. You want them to be able to have a full record and to understand how we got to where we are, not just for the public or for historians, but for use in the governing of the country.

11:11If that stuff is not available, if those records are destroyed or selectively destroyed, then our relations with other countries and our relations with people in this country are going to be skewed by the elimination of information, factual information that's important to have when we deal with them in the future. This sort of reminds me of the Trump administration's attempt to rewrite history by, for example, taking down mentions of slavery in Philadelphia. And I know your group is suing over that as well. Thanks so much for joining me today, Allison. We'll be sure to keep this message is brought to you by Apple Card.

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13:49Let's create smarter business, IBM. Back of what happens with your request for a preliminary injunction. That's Alison Dreisen, General Counselor of the American Historical Association. Former Homeland Security Secretary Kristi Noem will not face a contempt of court hearing, at least not right now. In a two-to-one decision, a D.C. federal appeals court blocked a judge from holding a hearing into whether Noem and others from the Trump administration were in contempt of court for deporting two plane loads of alleged Venezuelan gang members to a prison in El Salvador. Joining me is Bloomberg legal reporter Eric Larson.

14:32Eric, the start of this goes back more than a year. Tell us about it. Yeah, so this was over a year ago now. It feels like ancient history almost. But this was shortly after Trump took office. He declared hundreds of Venezuelan immigrants to be members of the Trende Aragua violent gang and used an obscure law called the Alien Enemies Act to unilaterally remove them without the typical due process, just load them on these planes, a couple of planes, and sent them to El Salvador, to that notorious prison there, under an agreement between El Salvador and the US. But obviously, with all of these people being rounded up and put on these planes, legal cases were brought, and this judge, Boesberg, issued an order when the planes were kind of in the air saying, you know, that they needed to be brought back in not so many words.

15:28But they didn't. The planes went ahead and landed in El Salvador and took them there. And so there was a question about whether or not the governments had violated the court order. And that's kind of what this particular fight is all about. Well, you mentioned it was more than a year ago. Why has it been so difficult for Boesburg to, you know, to find this out to hold contempt hearing. There was a lot of other stuff going on in the cases, you know, about the people who were impacted. So I think that the contempt argument was kind of like a side issue. But there was a question about whether Kristi Noem, then the head of DHS, had been in contempt and others as well by refusing to turn those planes around.

16:10And so the judge eventually wanted to hold hearings. I think he had originally planned them to take place in December or so. But the appeals court issued an administrative stay that sort of paused those hearings from taking place while they issued this decision. And that's, of course, the decision that we just got, blocking those hearings from going forward. So it was a two to one decision, two Trump appointees in the majority and a Biden appointee in dissent. Explain why the majority ruled against Bozberg. So they sided with the government's argument that a mere federal judge does not have the authority to demand testimony from members of the executive branch.

16:53So as with so many other legal disputes that we've seen involving the Trump administration, it's about the power of the executive in a lot of ways. They said that the judge abused his discretion, that basically when he found out the names of the people who were involved in this decision, that that was the information he needed and he didn't have any valid reason to be holding hearings on this. Because it wasn't just going to be Kristi Noem who would have to testify. There were others as well, including a whistleblower who presumably was going to have some pretty negative things to say about this decision that was made in the whole process.

17:30So a completely different version of events came from the dissenting judge. And she basically said that, I mean, these are very long decisions trying to boil them down. It was 80 pages of dissent. And there was also a concurring opinion. So there were three opinions altogether. But the dissenting opinion basically said that the majority was kneecapping an investigation into whether the government was in contempt of court. And sort of was almost circular in nature saying you can't investigate because they didn't do anything wrong, but you can't, you know, investigate because they didn't do anything wrong.

18:06So it was basically the judge was saying that the majority was kneecapping the investigation and holding that the government simply couldn't be held in contempt, couldn't be prosecuted. And Judge Boesberg, I mean, his name surfaces over and over again because he's been the subject of comments by President Trump that he should be impeached. I mean, he's been on the forefront of a lot of these decisions. Right. He definitely was a judge that was on Trump's radar fairly early on. And he's a very no-nonsense judge and issued some pretty strong opinions saying that President Trump or his administration were exceeding their authority, violating the law.

18:46He wasn't really mincing words very often. And Trump did not like that. But, of course, Judge Boesberg is still kicking. And also, I have to say that Judge Justin Walker, who wrote the concurring opinion, had nice things to say about Judge Boesberg in the concurring opinion. And it's not over, Eric. The ACLU says they're going to ask for a hearing en banc before the full circuit. And we should also point out that the Alien Enemies Act ultimately was determined by multiple courts that that law had been completely misused by President Trump in the Venezuela episode and in other courts around the country.

19:27Multiple judges from different parties that they're simply it's a wartime law. We're not at war. And therefore, you can still deport people. You can still round people up and seek to deport them under the immigration laws. But you simply can't do it without any due process via this particular law. Support for the show comes from Public. Lately, it feels like there are two types of investing platforms. Some are traditional brokerages that haven't changed much in decades. And others feel less like investing and more like a game. Public is positioned differently. It's an investing platform for people who are serious about building their wealth.

20:02On Public, you can build a portfolio of stocks, options, bonds, crypto without all the bugs or the confetti. Retirement accounts, yep. High yield cash, yes again. They even have direct indexing. Public has modern design, powerful tools, and customer support that actually helps. Go to public.com slash market and earn an uncapped 1 % bonus when you transfer your portfolio. That's public.com slash market. Ad paid for by Public Holdings. Brokered services by Public Investing, member FINRA SIPC. Advisory services by Public Advisors, SEC Registered Advisor. Crypto services by ZeroHash. All investing involves risk of loss.

20:40See complete disclosures at public.com slash disclosures. The thing about AI for business, it may not automatically fit the way your business works. At IBM, we've seen this firsthand. But by embedding AI across HR, IT, and procurement processes, we've reduced costs by millions, slash repetitive tasks, and freed thousands of hours for strategic work. Now we're helping companies get smarter by putting AI where it actually pays off, deep in the work that moves the business. Let's create smarter business, IBM. For many men, mental health challenges aren't recognized until they've already taken a toll.

21:19Work pressure, financial stress, changing relationships, and traditional expectations around masculinity can quietly wear men down, often without clear warning signs. In season three of The Visibility Gap, Dr. Guy Winch and his guests explore how these pressures show up, how to spot them earlier, and how men can access meaningful support. Listen to the new season of The Visibility Gap, a podcast presented by Cigna Healthcare. Let's turn now to Trump's debanking suit against JPMorgan Chase and CEO Jamie Dimon. Before we talk about the court moves, remind us what the case is about. So this lawsuit is part of President Trump's case against debanking is the term.

22:02He claims that financial institutions, including JPMorgan and another bank he has sued by his company, Capital One, debanked them because of their conservative political views, because of Trump's conservative political views, that they looked at politics and decided, we don't want anything to do with you. And that J.P. Morgan, in J.P. Morgan's case, closed his personal accounts, and in Capital One's case, closed hundreds of business accounts. This happened in early 2021. So it wasn't too long after the January 6th attack on the U.S. Capitol by a mob of Trump supporters. So there were other things going on around the time these decisions were made that banks have not said publicly why they closed the accounts.

22:44Trump is alleging it's because of his conservative political views, and that that is illegal under various laws. And why specifically is he suing Jamie Dimon instead of just suing the bank? Well, it depends who you ask. One of the claims in the complaint is that Trump was improperly added to an industry blacklist, in quotation marks, saying, don't ever do business with this guy because he's bad news. And allegedly, Diamond is the one who personally had Trump added to that list. So that is why Diamond has wound up in this complaint. JP Morgan has said that Mr. Diamond should be dismissed from the complaint because he has nothing to do with this.

23:26And they actually claim that Trump added Diamond specifically as a way to, through a technicality, make it a state Florida case because there's a Florida law, a consumer law that Trump argues allows them to sue in the court as long as they name Diamond. So the issue right now is where the case will be tried? Right. Yeah. So it started out as a case filed by Trump's personal lawyer in Miami-Dade County. J.P. Morgan removed it automatically just by sort of asking, moved it to federal court saying this is a federal issue. And now President Trump is trying to both move it back to state court or block it from being moved to New York, which is where J.P.

24:12Morgan ultimately wants it. So right now, it's a question of whether or not the case will be moved to Miami-Dade County, in which case the attempt by J.P. Morgan to move it to New York will be moot, or whether or not it will move to Manhattan right here. If Diamond is dismissed from the suit, then the suit will go forward, likely in Manhattan. Right. That's the bank's contention. Yeah. They say that he was fraudulently added as sort of like the legal term. So, by the way, they've clearly signaled what their motion to dismiss is going to look like when that's filed. They're saying that all of their customer agreements at JPMorgan Chase explicitly say that any legal dispute of any kind stemming from a customer agreement must be handled in New York courts.

24:58And also it says that they can close accounts for any reason they want, period. It sounds like boilerplate language. So what are the choices of courts to hear this? Right now, the judge is just weighing whether or not to return the case to state court in Florida, or alternatively, keep it in federal court in Florida, or alternatively, transfer it to federal court in Manhattan. So Trump keeps suing in Florida, near Mar-a-Lago, but several of his suits haven't even gotten close to trial, including recently the one against the Wall Street Journal. Yes, a federal judge in Miami dismissed Trump's lawsuit, his defamation lawsuit against the Wall Street Journal, I believe it was for$10 billion, over a story they wrote saying that Trump had drawn a lewd birthday note for Jeffrey Epstein years ago for his 50th birthday, one of many prominent people who were supposedly asked to send him notes.

25:59Trump denies that, says it's a fake note. It wasn't his. And he sued, said it was false. And the judge said no. Because you know, there's a high bar for a public figure like Trump to allege defamation. They have to show something called actual malice to show that the publisher knew or recklessly disregarded the potential that it was false. So you have to have some sort of facts in your complaint to suggest that that malice existed. And the judge said there were none. And so the case was dismissed. But there is a little twist here, and that is that Trump is going to get to refile that case by April 27th, I believe, is the deadline the judge gave him.

26:38Pretty quick deadline. And now Trump is asking for discovery into the Wall Street Journal to help beef up his case. And another federal judge in Miami dismissed the Trump Organization's suit against Capital One as deficient and lacking in detail. That also can be refiled. Thanks so much for joining me, Eric. That's Bloomberg Legal Reporter Eric Larson. And that's it for this edition of the Bloomberg Law Show. Remember, you can always get the latest legal news on our Bloomberg Law Podcast. You can find them on Apple Podcasts, Spotify, and at www.bloomberg.com slash podcast slash law. And remember to tune into the Bloomberg Law Show every weeknight at 10 p.m.

27:24Wall Street time. I'm June Grosso, and you're listening to Bloomberg.

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