Major Blow to JFK Records Act

[Roger Odisio]

9 hours ago, James DiEugenio said:

If NARA had the powers the ARRB had, then why did they not overrule the Gannon Memo?

That memo was an alteration of the law was it not?

 

The Gannon memo misinterprets the JFK Act by claiming Congress intended to eliminate the Act's standards for postponing record releases when the 2017 deadline for releasing records had passed. Therefore allowing Trump and Biden to substitute their own, weaker standards. Which they have done.

My problem with assigning such importance in the MFF case to the Gannon memo is I don't see where Seeborg relied on it in either order. Perhaps you or Andrew can direct me to that passage if I have missed it.

Seeborg used a different argument to dismiss the heart of the MFF case against Biden and NARA. He said Congress intended to shut down the whole process of releasing records when it mandated that the ARRB close. This is a massive and crucial misreading of the Act.

As to your first question.  The central point of the MFF suit is that NARA has the power to take up the Review Board's obligations under the Act, but has not been using it. 

[Andrew Iler]

2 hours ago, Roger Odisio said:

Section 12 is titled Termination because (a) terminates the ARRB's role in the obligations that Act establishes, and after that (b) establishes how the task itself shall end--when the Archivist notifies the President and Congress that all records have been released.

I am not arguing "obliquely" about the impact of (b).  It's straightforward.  That is not just the primary importance of (b); it is its purpose.

Roger, it is really about the plain meaning of the statutory language of section 12.  

12(b) is a plain and simple sunset clause for the remaining provisions of the Act that do not deal with appointments or operations of the ARRB. 

The legally consequential part of 12(b) however is that all provisions not pertaining to the ARRB’s appointments and operations shall continue to be operable law until the Archivist certifies that all records have been publicly disclosed.

Yes, the Archivist cannot shut down the rest of the provisions of the Act and stop the release of the remaining withheld files. I understand your argument.

I do not think that this is a hill for you to die upon. 

[Roger Odisio]

2 hours ago, Andrew Iler said:

AI:  Roger, it is really about the plain meaning of the statutory language of section 12.  

12(b) is a plain and simple sunset clause for the remaining provisions of the Act that do not deal with appointments or operations of the ARRB. 

The legally consequential part of 12(b) however is that all provisions not pertaining to the ARRB’s appointments and operations shall continue to be operable law until the Archivist certifies that all records have been publicly disclosed.

RO:  Thru here, I of course agree with you, as you know.

AI:  Yes, the Archivist cannot shut down the rest of the provisions of the Act and stop the release of the remaining withheld files. I understand your argument.

RO:  I have not said that.  In fact, she can.  Under 12(b) she has the power to "certify" that all JFKA records have been released, ending the usefulness of the Act, even if they haven't been. Who can challenge that?  Congress, a new president after Biden, MFF?

We can't lose sight of the fact that the current Archivist, with apparently little background, was appointed to the job by Biden just last spring.  This was during the time of the controversy over the files taken by Trump, Biden etc.  Republicans were worried she would decide those issues in a partisan way for the Democrats. She barely squeaked though confirmation in the Senate by a couple of votes.

I suspect she is beholden to Biden.  In the responses by the defendants in the lawsuit, I see no independent voice by the Archivist. It's not even clear to me whether she knows about her job under 12(b).  I suggested that Bill and Larry ask her, but who knows if they will get the chance.

AI:  I do not think that this is a hill for you to die upon. 

RO: I don't live there.

 

[Andrew Iler]

1 hour ago, Roger Odisio said:

 

In the responses by the defendants in the lawsuit, I see no independent voice by the Archivist. It's not even clear to me whether she knows about her job under 12(b).  I suggested that Bill and Larry ask her, but who knows if they will get the chance.

Well Roger, once again you are very presciently jumping the gun by raising the issue of the Archivist not being part of the lawsuit. If you are good moving onto new ground, I think it’s a good time to talk about ministerial duties. 

I am glad that we’ve resolved the 12(b) issues. 😁

[James DiEugenio]

Whatever one thinks of the Gannon memo, Trump used it to delay release twice. 

And Andrew showed how above, as NARA obeyed it.

Mark Adamczyk showed in his article that I posted that the Gannon memo is likely illegal.

But that did not matter to Trump, the FBI or the CIA.

Here is my question: where was Tunheim?

Or maybe the next challenge should come in his court?