Trump Administration Declares Presidential Records Act Unconstitutional

A law enacted after the Watergate scandal established that a president's official records belong to the government rather than to the individual. The Presidential Records Act of 1978 requires presidents to preserve such records during their time in office and transfer them to the National Archives at the end of their terms.

The Trump Administration has taken the position that the law violates the Constitution. In a request from White House counsel David Warrington, the Justice Department's Office of Legal Counsel reviewed the statute and released an opinion last month declaring it unconstitutional.

The opinion stated that Congress cannot preserve presidential records merely for the sake of posterity and that the law infringes on the constitutional independence and autonomy of the executive branch. The opinion concluded that the president need not further comply with the law's requirements.

It was signed by Assistant Attorney General T. Elliot Gaiser. Two organizations filed lawsuits shortly after the opinion's release to require the White House to follow the Presidential Records Act. One suit was brought by the American Historical Association and American Oversight.

The other was filed by the Freedom of the Press Foundation and Citizens for Responsibility and Ethics in Washington. "This case is about the preservation of records that document our nation’s history, and whether the American people are able to access and learn from that history," the American Historical Association lawsuit asserts.

On Wednesday, U.S. District Judge John Bates held a hearing on a request by the groups that he order the Administration to comply with the records law while the case proceeds. The Presidential Records Act was passed in the wake of Watergate and the struggle for control of Richard Nixon’s White House tapes.

It provides that a president’s official records are government property, allows a president to exclude personal records, sets timetables for releasing documents after the president has left office, and includes a mechanism for asserting executive privilege.

The Administration's court filings describe the Presidential Records Act as an unconstitutional and ahistorical imposition on presidential autonomy. It argues that presidents from George Washington onward treated their records as personal property. Gary Stern, who served as general counsel of the National Archives for 26 years, worked with five administrations from Bill Clinton’s to Joe Biden’s on preserving and releasing presidential records.

Stern said those administrations all had frustrations with the law but that no one suggested it was unconstitutional. In that ruling, the court voted 7-2 to reject Nixon’s claim that a version of the Presidential Records Act violated the separation of powers.

The court held that claims of presidential privilege must yield to the congressional purposes of preserving the materials. The opinion signed by T. Elliot Gaiser stated that the Nixon case is distinguishable because it addressed a materially narrower statute under extraordinary circumstances.

It further asserted that the court’s separation of powers analysis is wrong.

During his first term, Trump had a habit of tearing documents into tiny pieces after reviewing them. He continued the practice despite urging from two chiefs of staff and the White House counsel to stop. White House employees were left with the task of taping the pieces back together for archiving.

After leaving office, Trump faced investigation by special counsel Jack Smith over his retention of classified documents. Some boxes from the White House, including material with classified markings, were found at Mar-a-Lago. The charges against Trump were later dismissed by U.S. District Judge Aileen Cannon.

The Times reported that when National Archives officials pressed for the return of records, Trump responded that the materials were his.

With the Law The administration’s argument that presidents have always treated records as personal property is incomplete, according to Stern. He noted a half century of presidential compliance with the law after its enactment. Stern recalled working with Brett Kavanaugh during the George W.

Bush administration on an executive order implementing the Presidential Records Act. The law followed an earlier 1974 statute that applied only to Nixon. Historians have used the preserved materials, including Nixon’s tapes, in the decades since the Supreme Court decision.

Sarah Weicksel, executive director of the American Historical Association, said presidential records are essential for the transfer of power between administrations and for helping lawmakers understand how past decisions were made. She added that the records are also important for historians.