Justice Department says law requiring president to turn over records at end of administration is unconstitutional

Washington — The Justice Department said that a federal law enacted in the wake of the Watergate scandal that requires the president to preserve certain documents and turn them over to the National Archives at the end of his administration is unconstitutional.

The opinion from Assistant Attorney General T. Elliot Gaiser, who leads the Office of Legal Counsel, concluded that the Presidential Records Act exceeds Congress’ power and “aggrandizes the legislative branch” at the expense of the independence of the executive branch.

Gaiser, who clerked for Supreme Court Justice Samuel Alito, wrote that as a result of his determination that the Presidential Records Act is unconstitutional, President Trump does not need to comply with it.

“The PRA is not a valid exercise of Congress’s Article I authority and unconstitutionally intrudes on the independence and autonomy of the President guaranteed by Article II,” he found. “The Act establishes a permanent and burdensome regime of congressional regulation of the Presidency untethered from any valid and identifiable legislative purpose.”

The Office of Legal Counsel decision on the constitutionality of the records law was made public Thursday and first reported by Axios.

The Presidential Records Act was enacted in 1978, four years after President Richard Nixon’s resignation. The law established that presidential records belong to the U.S. government, not the president personally, and must be preserved. When a president leaves office, the Presidential Records Act requires material to be turned over to the National Archives, which maintains the documents.

The measure governs the records of the president, vice president and certain parts of the Executive Office of the President, like the National Security Council, and sets out requirements for the maintenance, access and preservation of information during and after a presidency.

Under the law, the White House must preserve material relating to certain political activities and information regarding the president’s duties, including emails, text messages and phone records. But it excludes the president’s personal records, which are documents of a “purely private or nonpublic character.”

The Presidential Records Act has no enforcement mechanism, but Mr. Trump repeatedly invoked the law after he was indicted in 2023 on charges stemming from his alleged mishandling of sensitive government records after the end of his first term in January 2021. 

In a case pursued by then-special counsel Jack Smith, Mr. Trump was accused of keeping classified documents at his South Florida resort, Mar-a-Lago, after repeatedly rebuffing demands from the National Archives that he turn them over. 

Mr. Trump denied any wrongdoing and claimed that he was allowed to keep all of the material under the records law. The case eventually ended after he won a second term in the White House last November.

The Office of Legal Counsel provides the president and federal agencies with advice on legal questions, and its opinions bind the executive branch. But if a court reaches a different interpretation of a legal question, that determination prevails.

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