National Archives: January 6 Records Can Be Destroyed, But Trump’s Records Are Different; America First Legal Reveals Partisan Preservation of Government Records
WASHINGTON, D.C. – Recent reporting reveals that the House Administration Committee’s Oversight Subcommittee was due to receive “about four terabytes of data from the outgoing Democrats but was given only about half that much…117 files were deleted, according to a House digital forensics examination seen by Fox News.” The files were later recovered, but “[b]efore being deleted, all 117 files were encrypted and require a password Republicans don’t have before their contents can be seen.”
America First Legal (AFL) was concerned that the January 6 Committee’s records might be destroyed or improperly preserved. Anticipating this, on December 2, 2022, America First Legal filed a Freedom of Information Act (FOIA) request with the National Archives and Records Administration (NARA) seeking: “All policies, procedures, instructions, manuals, guides, or other written material that relate to or mention NARA’s collection [of] Congressional Records at the conclusion of a session of Congress.” AFL’s request was referencing 44 U.S.C. § 2118, which requires the Clerk of the U.S. House of Representatives to (1) obtain the records of the Congress and each congressional committee and (2) transfer them to NARA.
In response to AFL’s request, NARA disclaimed any responsibility, arguing “it is entirely within the discretion of the Secretary of the Senate and Clerk of the House of Representatives to decide the appropriate time for the transfer of noncurrent records to the National Archives and Records Administration.”
NARA is not only wrong, but its response reveals NARA’s substantial bias against the Trump Administration and in favor of anti-Trump congressional Democrats.
Nothing in the Presidential Records Act authorizes NARA–in the name of records preservation–to make any referrals to an Inspector General or the FBI. Yet, NARA exercised its discretion to sic law enforcement against President Trump. Tellingly, when it comes to the January 6 Committee’s records, NARA refused to exercise discretion to ensure those records were preserved. As the D.C. Circuit has made clear, “[t]he National Archives serves as a repository for the federal government, including Congress and legislative branch agencies.” Cause of Action v. Nat’l Archives & Records Admin., 410 U.S. App. D.C. 97, 100-01 (D.C. Cir. 2014).
NARA’s disclaiming responsibility over legislative records is wrong, as 44 U.S.C. § 3314 clearly provides that “records of the United States Government may not be alienated or destroyed except under this chapter.” Yet despite applicable law mandating that NARA must ensure that noncurrent records of the Congress–which the United States owns–are properly preserved and transferred, NARA concocted an excuse to evade responsibility.
Statement from Gene Hamilton, America First Legal Vice President and General Counsel:
“The National Archives–a supposedly ‘independent’ agency of the United States government–has repeatedly demonstrated partisan bias in its actions. Rather than as a neutral arbiter and record-keeper, the National Archives embodies the ‘deep state’ in action. The same zeal with which the Archives tasked the Department of Justice to go after President Trump should be immediately exercised by the National Archives and its Inspector General to recover legislative records and place them in the Archives. To not act is tantamount to a concession of arbitrary partisanship and disregard for the rule of law.” said Gene Hamilton.
Read NARA’s letter here.
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