The Trump White House has asked the Justice Department's Office of Legal Counsel to declare the Presidential Records Act of 1978 unconstitutional — and the O.L.C. obliged, concluding last month that 'the President need not further comply with its dictates,' The New Yorker reports.
Said Gary Stern, who served as general counsel of the National Archives for twenty-six years and worked with five administrations on records compliance: 'No one ever suggested that the law was unconstitutional. Everyone worked very constructively, including Trump 45 and his White House counsel, to implement the P.R.A. and make it work.'
Two lawsuits — one by the American Historical Association and American Oversight, one by the Freedom of the Press Foundation and CREW — are already in federal court. U.S. District Judge John Bates heard arguments Wednesday on whether to order the administration to comply while the case proceeds.
The Presidential Records Act was not a whim of a liberal Congress. It was passed in 1978 as a direct constitutional remedy to a specific catastrophe: Richard Nixon’s attempt to retain, and in some cases destroy, the White House tapes and documents that documented his conduct in office. The original 1974 statute applied only to Nixon. The 1978 law generalized the principle — presidential records are government property, held in trust for the public — and every administration since has accepted that framework as the operating baseline.
The Trump administration’s O.L.C. opinion, signed by Assistant Attorney General T. Elliot Gaiser, waves that history aside with a revealing maneuver. It claims that George Washington took his papers home to Mount Vernon, that pre-PRA presidents treated their records as personal property, and that the PRA therefore represents an ‘unconstitutional and ahistorical imposition on presidential autonomy.’ The argument is not wrong about Washington. It is radically incomplete about everything that happened between 1789 and 1978 — and it says nothing at all about the Supreme Court.
In 1977, the Supreme Court voted 7–2 to reject Nixon’s own separation-of-powers and executive-privilege claims against the earlier records statute. The Court held that, given the ‘safeguards built into the Act’ and ‘the minimal nature of the intrusion into the confidentiality of the Presidency,’ presidential privilege must yield to ‘the important congressional purposes of preserving the materials and maintaining access to them for lawful governmental and historical purposes.’
The O.L.C. opinion’s answer to this controlling precedent is, in its own words, that the Court’s ‘separation of powers analysis is wrong’ — dismissing the majority opinion, written by Justice William Brennan, as a relic of pre-conservative-majority jurisprudence. It similarly dispenses with 1978 congressional testimony by Deputy Assistant Attorney General Larry Hammond, who told lawmakers that extending government-property principles to presidential records raised ‘no substantial problems,’ by noting in a footnote that ‘that advice has not withstood the test of time.’
This is not legal reasoning. It is result-oriented opinion-shopping: decide the answer, then work backward through precedent, dismissing what doesn’t fit.
The stakes are concrete and irreversible. Said Sarah Weicksel, executive director of the American Historical Association: ‘Presidential records are essential for the transfer of power between administrations and helping lawmakers understand how past decisions were made. They are essential for historians who come five, ten, fifteen, fifty, a hundred years later, asking historical questions about an Administration or about American life in the twenty-twenties.’
This is not an abstraction. The Nixon tapes — the very records Nixon tried to protect as ‘his’ — became the foundation for everything historians, prosecutors, and Congress subsequently understood about how executive power can be abused. An alternate 1974 in which Nixon destroyed those tapes freely is not a hypothetical; it was Nixon’s stated preference. The 1978 law exists precisely because Congress decided that preference could never again be an option.
Trump’s record on this specific norm predates the legal challenge. During his first term, two chiefs of staff and the White House counsel urged him to stop tearing documents into pieces; White House employees taped them back together. Maggie Haberman reported in Confidence Man that he periodically threw paper into White House toilets, clogging pipes, with his handwriting on the clumped sheets. The current O.L.C. opinion is the legal architecture for institutionalizing what was, in the first term, a personal habit.
Judge Bates’s ruling on the preliminary injunction will be the first concrete test of whether the courts will allow a live constitutional challenge to gut a Watergate-era statute while the administration is actively in a position to destroy the very records at issue.