The Department of Justice’s Office of Legal Counsel (OLC) has concluded that former President Donald Trump is not required to turn over his presidential records to the National Archives, marking a significant break from decades of precedent.
In a 52-page opinion issued this week, Assistant Attorney General T. Elliot Gaiser rejected the Presidential Records Act (PRA), a post-Watergate law designed to ensure the preservation and public ownership of presidential records. Gaiser argued that the statute is unconstitutional and lacks a valid legislative purpose.
“The PRA exceeds the oversight power because 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,” the opinion states.
The opinion was released one day after Trump unveiled a first look at his planned presidential library. If formally adopted by the Trump administration, the legal position could fundamentally alter the long-standing process governing presidential records.
The PRA, enacted in 1978 following the Watergate scandal, transferred ownership of presidential records from private hands to the public. Under the law, materials such as emails, phone logs, and other official documents created during a presidency are transferred to the National Archives and Records Administration (NARA) after a president leaves office. Former presidents have up to 12 years to complete the handover.
Every president since Ronald Reagan has complied with the PRA.
Trump, however, faced scrutiny after his first term for allegedly violating the law by storing sensitive materials at his Mar-a-Lago residence. He was later indicted on charges related to retaining classified information and obstructing justice. That case was ultimately dismissed after U.S. District Judge Aileen Cannon raised concerns about the appointment of special counsel Jack Smith.
The new OLC opinion asserts that the PRA improperly expands congressional authority and infringes on executive independence.
“Just as Congress could not constitutionally invade the independence of the Supreme Court and expropriate the papers of the Chief Justice or Associate Justices, Congress cannot invade the independence of the President and expropriate the papers of the Chief Executive,” the opinion states.
With three years remaining in Trump’s second term, the Justice Department now maintains that the president “need not further comply” with the law governing the transfer of presidential records.
While the OLC provides legal guidance to the executive branch, any attempt to implement this interpretation is likely to face legal challenges, potentially setting up a major constitutional dispute over the balance of power between Congress and the presidency.
