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This week, Donald Trump’s Department of Justice found a new and disturbing way to try to consolidate power exclusive in the hands of Trump, this time releasing a dubious opinion through the Office of Legal Counsel that argues the president’s records don’t ever need to be publicly shared. The OLC now claims that the Presidential Records Act, which was created in the wake of the Watergate scandal some 50 years ago and makes all presidential records federal property, invades the president’s “independence,” and is thereby unlawful. In practice, it means a man who once claimed he was “the most transparent president in history,” but was also indicted for mishandling classified documents, can legally walk away from the White House with any document he so pleases and never have to publicly report a single one.

The 52-page document is written as if it were a binding judicial opinion, which it is not. The Office of Legal Counsel serves as the president’s quasi in-house lawyer, offering legal analysis on the permissibility of the executive branch’s actions while also playing referee between federal agencies when they disagree. Its decisions can be challenged in court, which is exactly what happened with the OLC’s latest opinion attempting to unilaterally dismantle an act of Congress that sought to protect the people from an out-of-control and secretive president. On Tuesday, the American Historical Association, in partnership with American Oversight, announced they were suing to stop the OLC opinion from going into effect. The OLC’s opinion, they argued, effectively encourages the president to violate federal law, relying on virtually no judicial authority while also defying Supreme Court precedent.

The PRA was established not only to preserve presidential materials as a matter of historical record, but for transparency. After dealing with former president Richard Nixon’s administration and the messy legal battle over the Pentagon Papers, the PRA ensured any future presidential materials would always remain federal property, ensuring transparency with Congress and the public. Trump was charged with crimes in connection with his violation of the PRA and his hoarding of classified documents in a bathroom in his home in Mar-a-Lago at the end of his last term, but was bailed out by one of his friendliest judicial appointments. Unsurprisingly, Trump’s OLC is now saying he did nothing wrong—and that he’s free to violate the law all over again.

David Janovsky has worked on federal transparency issues for decades and is acting director of the Constitution Project at the Project on Government Oversight. I spoke with him to understand exactly what legal argument the OLC is using to try to dismantle the PRA and what it means for the future of government transparency.

This interview has been lightly edited and condensed for clarity.

Shirin Ali: Can you break down the legal argument the OLC is making in its opinion over the Presidential Records Act?

David Janovsky: It’s a pretty breathtaking argument. The OLC is taking a nearly 50-year-old statute that presidents have complied with since the Reagan administration, without any real incident, and has suddenly concluded that the whole thing is unconstitutional because it’s beyond Congress’ power to regulate presidential documents. It goes through a whole lot of really convoluted reasoning to get there, but that’s the main conclusion here: This law that just says presidents have to hand over their official documents to the National Archives, which is part of the executive branch itself, is not, in fact, legal.

The opinion claims there are a few different reasons that the PRA is beyond Congress’ power, but it spends by far the majority of its time making a quite strange argument, frankly, which is conflating Congress’ power to investigate the executive branch with its power to pass laws that set out this technical process for where documents go within the executive........

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