Justice Department Says the Presidential Records Act Is Unconstitutional

The Department of Justice has determined that the decades-old Presidential Records Act is unconstitutional, a decision that could allow the White House to create its own system to choose which records must be retained after President Donald Trump leaves office.

The department’s Office of Legal Counsel issued a 52-page opinion earlier this week, signed by Trump appointee T. Elliot Gaiser, arguing the records act oversteps Congress’ authority.

“The PRA is unconstitutional for two independent but interlocking reasons: It exceeds Congress’s enumerated and implied powers, and it aggrandizes the Legislative Branch at the expense of the constitutional independence and autonomy of the Executive,” the opinion reads.

“It serves no identifiable and valid legislative purpose. It exceeds any preservation power because Congress cannot preserve presidential records merely for the sake of posterity. It exceeds Congress’s regulatory power over statutory agencies because it purports to regulate a constitutional office — the Presidency — that Congress did not create and that Congress cannot abolish,” it continues.

The act was signed into law by then-President Jimmy Carter after the Watergate scandal, which revealed illegal surveillance and a sabotage campaign by Richard Nixon’s reelection committee.

The DOJ opinion is legal guidance to the White House and not a change to the law, which would require congressional action.

The opinion argues Trump does not have to turn over his presidential records to the National Archives at the end of his administration, because the 1978 law is “untethered from any valid and identifiable legislative purpose.”

A White House spokesperson told The Washington Post that the president is “committed to preserving records from his historic Administration and he will maintain a rigorous records retention program.”

The Presidential Records Act is of particular interest to Trump after he was indicted in 2023 on charges he retained dozens of boxes of classified material in a bathroom of his Mar-a-Lago home after leaving office.

Trump’s attorneys argued that the Presidential Records Act allowed him to designate which files were personal versus presidential.

Eventually, the case was dismissed by Judge Aileen Cannon, ruling that the appointment of Jack Smith as special counsel was unconstitutional, and dropped by the DOJ after Trump won his second term.