Trump Blocked from Shredding Evidence in Final Moments

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2:45Michael Popok:Is Donald Trump seriously considering destroying the National Archive containing all presidential papers, not just his own? Is he seriously considering destroying presidential and vice presidential papers and not turning them over pursuant to the Presidential Records Act? That is a question that's being asked by a brand new filing in breaking news by the American Historical Association and American Oversight, who are now before Judge Beryl Howell, who knows Donald Trump well because she presided over that criminal case involving election interference in Donald Trump in the District of Columbia when she was the chief judge.

3:25Michael Popok:She's been assigned to the case. The Trump administration is not happy about it, have taken steps to try to remove her because they don't like her. But she's not going anywhere. And she's now issued an order that she wants a response to the new motion for preliminary injunction as to whether Donald Trump is going to comply with the Presidential Records Act or not. Or is he going to take a flamethrower, a blowtorch to the people's papers? I mean, one comment, though, I know they're doing this in a methodical way and I've appreciated everything the American Historical Association and American Oversight has done.

4:02Michael Popok:But if it's true, as you've reported in your filing, that you reached out to the Trump administration and they refused, refused to agree not to destroy things, including the National Archive during the pendency of the case, I think you have the grounds for a temporary restraining order on an emergency basis. Because there's now a gap. The judge is trying to close the gap. She wants a briefing scheduled by later this week. But still, he could do a lot of damage. The presidency is in charge of the National Archives. It's an executive branch. And the argument that Donald Trump is making is that, well, my lawyers, literally his lawyers in the Department of Justice, the Office of Legal Counsel that worked for him, told him in a 50-page memo just last week that the 1977 Supreme Court precedent of Nixon versus is the General Services Administration, which was about the predecessor to the Presidential Records Act, about President Nixon, the last criminal president's illegal tape recording of people while in the White House and his papers, millions and millions of pieces of paper.

5:12Michael Popok:They argued, well, Congress can't require me to turn over all the tapes, can't require me to turn over all the records of the president. That's the legislative branch, separation of powers. Are we done here? And the Supreme Court in 1977, which is the prevailing precedent, said, no, Congress is allowed as the keeper of all property under the property clause of the Constitution that belongs to the people, whether personal in nature or private in nature. It's the people's papers, the people's property, and the landlord for that is Congress. And they can direct another archive for executive papers, not the current occupant of the White House, you know, for posterity purposes, to make sure they're not destroyed.

5:54And so their argument, the Supreme

5:56Michael Popok:Court's rationale, jurisprudential analytic, is that there's no separation of powers problem. Congress owns the papers pursuant to the property clause, and they're not directing that the papers get deposited in the Library of Congress. They're alleging that they're arguing that, or ruling that the papers get delivered to another branch of the executive like a time capsule for the future. These are the arguments that Donald Trump is raising now in his Office of Legal Counsel memo last week that said, no, that was wrong. You can do what you want with the papers. Destroy the National Archive if you want.

6:34Michael Popok:Now, as I previously reported here on Midas Touch and on Legal AF, did I mention we have a YouTube channel called Legal AF and that you should subscribe. Yeah, you should. While Donald Trump's in control of this apparatus, I mean, Marco Rubio was until recently the acting archivist, if you can believe it. They could do a lot of damage. And so the lawsuit was filed after this memo came out that said the Supreme Court precedent was wrong. And then you had the new filing. Now you've got the motion for preliminary injunction. and this fight over who should be the judge. See, Donald Trump's big tell, like he's got an itchy nose during or blinks his eyes a lot or twitches during a poker game when he has cards he likes or whatever, is that he doesn't like Beryl Howell.

7:26Michael Popok:Now, Beryl Howell, she was the chief judge. She did some things in the cases involving Donald Trump's criminal prosecution. She stripped some people of attorney-client privilege. She made them testify against Donald Trump in grand jury proceedings. She lets some subpoenas get issued, you know, and she's done some things in the Gen 6 sentencing and trials. She's done some things involving the Trump administration when it comes to immigration law, the Alien Enemies Act, his attempt to make law firms bend the knee and pay money. She's been right there ringside to history, if you will. They can't wait to get rid of her.

8:05So they argued that when, see, when you file a case in federal court,

8:10Michael Popok:I'll speak to you now as a practitioner. When you file a case, there's a civil cover sheet. You fill out the parties. You fill out maybe some related parties so that they know what's going on. You check the box about what the case is about, the amount in controversy, the jurisdiction, and all of that. It's a basic, it's literally a form. But in there, if you believe there's a related case that relates directly to this one so that this case should be sent to the same judge. You check the box, you list the case number and how it's related. Well, they did that because there was a similar Freedom of Information Act request that went out by American Oversight on some of these issues, and it was handled by Beryl Howell.

8:49Michael Popok:So who better to have the underlying substantive lawsuit than Beryl Howell? Okay. And nobody had been assigned to the case anyway. and the clerk of the court agreed and assigned it to Beryl Howell. Oh, Donald Trump didn't like that. They're not related. They shouldn't be related. Why don't they just come out and say the truth? They don't like Beryl Howell. They want to get rid of her as a judge. You know, of course, when they have a judge they love, like Aileen Cannon, it's like, oh, well, let's put everything in front of her down in Florida. So effectively, Beryl Howell has ruled already because she asked for a briefing schedule on this particular injunction hearing motion.

9:30Michael Popok:She wants it by sometime this week. I think she's going to have them all. I think the briefing is going to be done by next week and she's going to have them in for a conference. Now, there is a threat that they're going to destroy in the meantime. I think that's a real threat. That's why I would have moved for a temporary restraining order. Sorry to be a Monday morning quarterback, armchair quarterback, but listen, I've been doing this. I've been doing this a long time too. So with that, I can take some shots. I can make some comments. Now, presidential and vice presidential records, any records of the government, supremely important.

10:05Michael Popok:Freedom of Information Act requests go to government entities in order to get information. Many times from a Freedom of Information Act, a FOIA request later is filed a very large lawsuit. You know, sometimes from the outside, it's so opaque that the lawyers and the organizations are like, we think these two things are going on. And then you get the documents. Turns out, no, you were wrong. There were three other things that were going on. In fact, I had Sky Perryman, whose group Democracy Forward is constantly filing dozens and dozens and dozens of information and records requests through FOIA.

10:42Michael Popok:and who a case like this would impact because if Donald Trump had his way, the whole National Archive would be set aflame. Here's what she told me during an interview yesterday about the purpose of having a Freedom of Information Act records request at the beginning of a case and how as the administration continues, the longer it's in office, the more these information requests for records are so important. Play the clip. You know? Yeah, and our team, I just have to call it out. I mean, we have, so we have our general litigation team at Democracy Forward, which we talk so much about their cases.

11:17And we have a specific oversight team. And we have people that are filing literally thousands of record requests as people as we need to get to the bottom of things. And then we have some phenomenal lawyers, including Dan McGrath and others who are on that complaint, Robin Thurston, others that file these, that then come in and file the lawsuits in order to enforce those requests. That is something that's happening nearly 24-7 at Democracy Forward. While many of our other cases are always in the news, we block detentions of people, block more at least arrest, all the things you expect us to do.

11:49This is really important. It becomes much more important now that we're in year two of this administration. It'll be more important in year three and year four because there's more information to know. There's more pieces we can put together. And so that's a big piece of our strategy.

12:02Michael Popok:What percentage, I'm just going to, if you don't know it, you can just rough it out. What percentage do you think of the cases that you've brought that we're familiar with started as a Freedom of Information Act request? So, well, I will tell you by the time we get to the end of the administration, it will be a large percentage because that's sort of how this works. Now, of course, at the beginning of an administration, I mean, we had to come out of the gate and file a bunch of cases day one because he was doing all kinds of things day one. Well, there's not a Freedom of Information Act request in the government.

12:32So you're going to see. So now you will start seeing more and more. Sometimes we just get the documents. We don't have to sue on them. And the documents help us frame out our complaints. And you'll start seeing that. Other times we have to sue to get the documents. And those inform just for those at home. they inform things that are happening and we realize, oh my gosh, we thought they violated the law in two ways. Well, guess what? Now they violated the law in four ways and it allows us to come in.

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14:36Michael Popok:They say that under it, it was on page two, that the legislation does not, the legislation, which was the predecessor to the Presidential Records Act, does not violate the separation of powers, including because it does not impermissibly interfere with the ability to carry out its constitutional functions. We're talking about papers, not interference with functionality. Even if they're right, which they're not in the White House, that Nixon versus GSA was wrongly decided, inviting it to be re-decided by the new United States Supreme Court, the Presidential Records Act is still in the book and it is constitutional.

15:17Michael Popok:Congress has clear authority to enact, they say on page two, the Presidential Records Act under the Property Clause of Article 4 of the Constitution, which the Supreme Court has held affords Congress power over the disposition of government property, sole power, both real and personal. The Office of Legal Counsel remarkably ignores this source of constitutional authority. Even though it was the primary authority the Department of Justice relied upon in defending the Presidential Records Act predecessor in the court. Then they go into what they're seeking and why they're here. And so here's what they're seeking in terms of an injunction.

15:58Michael Popok:The court should grant a motion for preliminary injunction as follows. an injunction that all defendants and their employees are preliminarily enjoined not to destroy and preserve in the custody of the federal government presidential or vice presidential records all defendants and their employees are preliminarily enjoined not to create or send a presidential or vice presidential record using a non-official electronic message account like signal see this was the very the very thing they told the judge we tried to get the other side to agree not to burn down the house while this case was going on, and they refused.

16:34Michael Popok:See, I think that gets you into court a lot faster. And don't use a signal disappearing app for your messaging unless you connect it to something that can be saved and salvaged, and then let the court know if you're destroying anything. That's a pretty good injunction. This is going to go fast. Beryl Howell in her order, she ordered that there be a briefing schedule this week, set up this week for the future. I think she'll, one way or the other, she'll tell the Trump administration they got a week to answer. I think before April is done, she's going to rule. And I don't think it's going to be in favor of Donald Trump and the Trump administration and the violation of the Presidential Records Act and or the seminal case 1977 of Nixon versus the General Services Administration.

17:22Michael Popok:I'll follow it all here. I'm glad you're here on Legal AF and Midas Dutch. Come over to Legal AF YouTube channel, hit the free subscribe button. Help us get to 1.1 million subscribers. Until my next report, this is Michael. Can't get your fill of Legal AF? Me neither. That's why we formed the Legal AF Substack. Every time we mention something in a hot take, whether it's a court filing or a oral argument, come over to the Substack. You'll find the court filing and the oral argument there, including a daily roundup that I do call, wait for it, Morning AF. What else? All the other contributors from Legal AF are there as well.

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