The Justice Department issued a memo last week asserting that one of the key laws passed in the aftermath of the Watergate scandal is unconstitutional. The law in question — the Presidential Records Act — was at the core of one of the federal criminal cases filed against President Donald Trump after his first term ended. The DOJ memo’s sweeping dismissal of the PRA serves as both a de facto attempt to exonerate Trump’s previous criminality and a broadside against the idea that Congress can ever place checks on the presidency.
The 52-page document, first reported by Axios, comes from the desk of T. Elliot Gaiser, the assistant attorney general in charge of the DOJ’s Office of Legal Counsel. While his office’s findings don’t hold the same weight as a court ruling, they are used to set legal policy within the administration. The memo is framed as a response to White House counsel David Warrington’s apparent question whether the PRA is constitutional. (Exactly why Warrington was asking goes unaddressed.)
The memo’s position opens the door to exactly the kind of harm the Presidential Records Act was meant to prevent.
Gaiser argues that the PRA can’t be constitutional for “two independent but interlocking reasons.” First, it exceeds Congress’s enumerated and implied powers” — neither wielding the legislature’s oversight or regulatory authority nor even touching on the power of the purse. Second, “it aggrandizes the Legislative Branch at the expense of the constitutional independence and autonomy of the Executive.” And, crucially, Gaiser determines that the law shouldn’t stand “because it restricts rather than empowers the President.”
Prior to the Presidential Records Act, presidents considered the myriad documents generated during their time in office as personal effects. Congress occasionally purchased these papers from the outgoing president, but as former President (and chief justice) William Howard Taft put it, it was inevitable that “there is lost to public record some of the most interesting documents of governmental origin bearing on the history of an administration.”
That changed in 1974, after President Richard Nixon resigned from office in disgrace. Many of the records and recordings Nixon wanted to keep were the same ones that led to his downfall and still had value to the special prosecutor investigating Watergate. A month after Nixon’s resignation, Congress passed the Presidential Recordings and Materials Preservation Act (PRMPA) to have the federal government take custody of any documents that were expressly about the president’s official duties.
Nixon filed a lawsuit challenging the PRMPA’s constitutionality, and the case eventually made its way up to the Supreme Court. In a 7-2 ruling, the court ruled against the former president, finding that the law didn’t violate the separation of powers as Nixon claimed. The Presidential Records Act was passed in 1978, building on that ruling’s framework and making it routine for presidents to turn over their White House’s records to the National Archives upon leaving office. But Gaiser, in his OLC memo, argues that the Court was “wrong” and “mistaken” in deciding against Nixon back then. This sweeping denunciation of a nearly 50-year-old precedent comes from a lawyer who was involved in developing the legal theories underpinning Trump’s efforts to overturn the 2020 election.
But two main problems arise from Gaiser’s analysis.
The OLC’s stance assumes that the principle of separation of powers means Congress can never pass a law that would limit or place constraints on a president. The notion fits well within the turbocharged executive theory that the Trump administration and its allies have pressed in other contexts. It further presumes that any encroachment on the maximum reach of the presidency goes against the Constitution.
But the Presidential Records Act was passed by both chambers of Congress and signed by President Gerald Ford. The Supreme Court already ruled the law’s predecessor was well within bounds of the Constitution and Gaiser does not explain why the PRA is any different. And there are ample examples, especially post-Watergate, where Congress has passed laws meant to curtail the executive branch and make it more transparent.
The memo’s position also opens the door to exactly the kind of harm the Presidential Records Act was meant to prevent. Nixon created plenty of documentary evidence of his crimes and was enough of a hoarder to have kept even incriminating documents on hand. But in its determination, OLC declared that “the President need not further comply with its dictates.”
The White House rushed to say its staff would still preserve official records under this new guidance but neglected to mention whether Trump himself would follow the same standards. Without the PRA as binding law, it follows that the president, and potentially vice president, would be free to do with their records as they please. It would also mean that rather than turning over all official documents at the end of this term, Trump could simply take them all with him — without the need to allegedly obstruct an FBI investigation into whether those documents included classified material. Or, even more disturbing, destroy the more unsavory of them before his term has even ended.
If anything, the Presidential Records Act is more necessary than ever considering the Supreme Court’s ruling in Trump v. U.S.
If anything, the Presidential Records Act is more necessary than ever considering the Supreme Court’s ruling in Trump v. U.S., which shielded presidents from criminal prosecution for their “official actions.” Chief Justice John Roberts’ formulation in that case requires prosecutors to determine whether actions under scrutiny from a former president were part of their “core constitutional functions.”
Any such investigation would inevitably require the paper trail that the Presidential Records Act mandates. That task would be made much harder if the president can simply assert either that the records in question are his personal property and therefore beyond reach or that they are official documents protected under the Supreme Court’s ruling. Either claim would be litigated in court but given Trump’s preference for delay tactics any ambiguity works out in his favor. And under the DOJ’s argument, even those documents that are part of upholding the “core constitutional functions” that Roberts’ litmus test requires are still outside of the reach of Congress, and potentially the courts, to require be turned over.
The clock is ticking to ensure that Trump can’t keep future generations in the dark about his administration’s record. Rather than wait to learn after the fact about papers being shredded or hidden away, the American Historical Association and American Oversight filed a lawsuit Tuesday asking a federal court to override the OLC’s findings and declare the PRA constitutional. It also wants the courts to bind Trump from violating the act once his term expires.
Any outcome will surely be appealed, all but inevitably making its way up to the Supreme Court again. It’s not a guarantee that Roberts and the rest of the justices would agree that the president’s records are the property of the American people. But it’s certainly not something for the Justice Department to decide unilaterally. Not when their boss has a history of keeping for himself materials that belong to all of us.
Hayes Brown is a writer and editor for MS NOW. He focuses on politics and policymaking at the federal level, including Congress and the White House.