"The Act helps to maintain that trust by shining some light on the activities of the President and his aides." — Federal Judge John Bates
OLC Declares Presidential Records Act Unconstitutional
The U.S. Department of Justice's Office of Legal Counsel (OLC) has issued a legal opinion concluding that the Presidential Records Act (PRA) of 1978 is unconstitutional. Following this opinion, two organizations filed a federal lawsuit challenging the determination, and a federal judge subsequently issued a preliminary injunction requiring most White House staff to preserve records covered by the Act.
OLC Opinion on Constitutionality
The Office of Legal Counsel, led by Assistant Attorney General T. Elliot Gaiser, issued a legal opinion stating that the Presidential Records Act is unconstitutional. Gaiser's opinion asserts that the PRA exceeds Congress's powers under Article I of the Constitution and infringes on the independence and autonomy of the executive branch as guaranteed by Article II.
The opinion describes the Act as establishing "a permanent and burdensome regime of congressional regulation of the Presidency untethered from any valid and identifiable legislative purpose." Based on this determination, the opinion states that President Donald Trump is not required to comply with the Act's dictates.
The OLC provides legal advice to the president and federal agencies. Its opinions are binding on the executive branch, but court interpretations of legal questions take precedence over OLC opinions and do not establish law. The OLC's decision was made public on a Thursday.
Background of the Presidential Records Act
The Presidential Records Act was enacted in 1978 following President Richard Nixon's resignation and the Watergate scandal. The law establishes that presidential records are the property of the U.S. government, not the president personally, and must be preserved.
Key provisions of the Act include:
- Mandating that official records created or received by the president and vice president after January 1981 be made public.
- Requiring that these materials be transferred to the legal custody of the Archivist of the United States at the National Archives and Records Administration (NARA) upon a president's departure from office.
- Governing records of the president, vice president, and specific components of the Executive Office of the President, such as the National Security Council and the Council of Economic Advisers.
- Requiring the White House to preserve material related to political activities and official duties, including emails, text messages, and phone records.
- Directing presidents to separate official records from personal records, defined as documents of a "purely private or nonpublic character."
- Allowing for the disposal of records lacking administrative, historical, informational, or evidentiary value, following consultation with the archivist.
The PRA does not have an explicit enforcement mechanism.
Previous Allegations and Legal Context
Former President Trump had previously referenced the Presidential Records Act after being indicted in 2023 on charges related to his alleged handling of sensitive government records following the end of his first term in January 2021. He was accused of retaining classified documents at his Mar-a-Lago residence despite requests from the National Archives for their return. Trump denied wrongdoing and asserted he was permitted to keep the material under the records law. The case was dismissed by Judge Aileen Cannon in 2024 and concluded after Trump's election to a second term in November 2024.
Federal prosecutors had alleged willful retention of national defense documents, obstruction of justice, and concealment of materials, including a classified military map. A memo from the special prosecutor's office indicated that Trump possessed highly sensitive documents previously accessible only to a limited number of individuals.
Following his second term inauguration, Trump replaced the head of the National Archives, an agency involved in the criminal proceedings against him.
Lawsuit Challenging the OLC Opinion
The American Historical Association and American Oversight filed a lawsuit in a federal court in Washington, D.C., challenging the Justice Department's OLC opinion. The plaintiffs seek a court order to uphold the Presidential Records Act and enforce compliance by Trump and senior White House officials. U.S. District Judge Beryl Howell was initially assigned to oversee the case.
In their lawsuit, the groups contend that the OLC opinion:
- Violates the separation of powers.
- Defies Supreme Court precedent, which previously upheld a similar law concerning presidential papers against former President Richard Nixon.
The plaintiffs noted that for 45 years, no administration had questioned the Act's constitutionality. They expressed concerns that Trump might retain presidential records after his term concludes in January 2029, citing his retention of documents after his first administration ended in January 2021, which led to the National Archives collecting 15 boxes of material, including classified documents, from his Mar-a-Lago residence.
Spokespeople for the Justice Department did not immediately comment on the lawsuit.
Federal Preliminary Injunction
U.S. District Judge John Bates granted a preliminary injunction on Wednesday requiring most White House employees to preserve records covered by the Presidential Records Act. The order took effect on May 26. The injunction applies to White House chief of staff Susie Wiles, deputy chief of staff Stephen Miller, the National Security Council, the Council of Economic Advisers, and employees within the Executive Office of the President. President Donald Trump and Vice President JD Vance were not covered by the order.
The judge ruled that the Act is "likely constitutional," rejecting the Justice Department's position. Judge Bates wrote that the Act "helps to maintain that trust by shining some light on the activities of the President and his aides" and that it is not for the court, the OLC, or the White House to second-guess Congress's lawful determination.
Chioma Chukwu, executive director of American Oversight, called the ruling "an important victory for presidential accountability." The Justice Department did not immediately respond to a request for comment.
Author Background
T. Elliot Gaiser, the author of the OLC opinion, previously served as a law clerk for Supreme Court Justice Samuel Alito. He was a member of Trump's 2020 campaign team and was mentioned in testimony before the Jan. 6 committee concerning his advice on election integrity, including the view that the vice president had a "substantive" role in the election certification process. During his nomination process, Gaiser declined to discuss his views on such matters, citing attorney-client confidentiality.