DOJ says Presidential Records Act is unconstitutional

The Department of Justice's Office of Legal Counsel issued a 52-page memo on April 1, 2026, concluding the Presidential Records Act of 1978 is unconstitutional. OLC head T. Elliot Gaiser wrote that the law "exceeds Congress's enumerated and implied powers" and "aggrandizes the Legislative Branch at the expense of the constitutional independence and autonomy of the Executive." (OLC Opinion) Gaiser, who clerked for Supreme Court Justice Samuel Alito, argued that Congress cannot compel the President to preserve records because such regulation intrudes on the executive branch's constitutionally protected independence. The White House Counsel David Warrington requested the opinion, and it now binds all executive branch agencies—meaning NARA, the Secret Service, and all White House staff are no longer legally required to preserve presidential records under the OLC's interpretation.

The Presidential Records Act was passed in 1978 in direct response to Watergate. In 1977, the Supreme Court ruled in Nixon v. Administrator of General Services that President Nixon personally owned his Oval Office recordings and documents. Congress passed the PRA to reverse that precedent and establish that all records of a president's official duties belong to the American public, not the president. The law has governed every administration from Carter through Biden without a constitutional challenge. (The Conversation) Previous administrations of both parties treated the PRA as binding—Reagan, Bush, Clinton, Obama, and Biden all complied. Trump's first term complied, at least formally. The 2026 OLC opinion is the first time any executive branch official has declared the law unconstitutional in its 48-year history.

The American Historical Association and American Oversight filed a lawsuit on April 7, 2026, in the U.S. District Court for the District of Columbia, asking Judge Beryl Howell to block the administration from disregarding the PRA. (NPR) The groups warned that without urgent court action, records documenting presidential decision-making could be lost to history. The lawsuit challenges the OLC memo and seeks a court order requiring the administration to preserve and transfer records to NARA. NARA under acting archivist Edward Forst declined to commit to preserving records during the litigation. Trump fired archivist Colleen Shogan in February 2025—the first time a president removed the archivist. Bradford P. Wilson, nominated March 2, 2026, awaits Senate confirmation to permanently lead NARA.

The OLC opinion relies on a reading of Article II that few constitutional scholars support. Gaiser argued that the PRA "constrains the President's day-to-day operations" and "serves no identifiable and valid legislative purpose." Legal scholars immediately challenged this reasoning. (CBS News) Harry Litman, a federal judge and legal analyst, called the memo a "license to shred" and noted that Gaiser essentially declares the Supreme Court's 1977 decision in Nixon v. Administrator "wrong" without engaging with its reasoning. Gary Stern, former general counsel of NARA, warned in the Washington Post that the opinion "threatens both Congress's check-and-balance prerogatives and government transparency." (Washington Post) The argument that Congress can't require presidents to preserve records would, if accepted by courts, apply to dozens of federal records and transparency laws.

The OLC opinion distinguishes between presidential records and records of executive agencies, claiming Congress cannot regulate the presidency itself without intruding on constitutional independence. Gaiser writes that over the first two centuries of American government, presidents owned and controlled their papers, and Congress obtained them "through political negotiation and interbranch accommodation, rather than as a matter of right." This historical practice, Gaiser argues, was interrupted by the 1974 Presidential Recordings and Materials Preservation Act and then the PRA, both of which he contends exceeded congressional authority. Critics point out that the Supreme Court already rejected this exact argument in Nixon v. Administrator, upholding the constitutionality of presidential records preservation.

Federal Judge Beryl Howell, assigned to the AHA lawsuit, has a track record of ruling against executive overreach. She previously served as chief judge of the D.C. District Court and is widely respected for independent judicial reasoning. The case will likely turn on whether courts accept the OLC's separation of powers argument or instead apply longstanding precedent from Nixon v. Administrator, which upheld presidential records preservation. If Howell rules against the administration, an appeal is likely given the OLC's binding role within the executive branch. The outcome will determine whether presidents can ignore the PRA unilaterally or must comply until courts rule otherwise.

Christopher Fonzone, a former leader in the OLC, called the memo "a bolt of lightning unanticipated by any Executive Branch or Supreme Court opinion or even contemporary legal scholarship." He wrote that the opinion contradicts decades of settled executive branch practice and constitutional understanding. This criticism from within the institutional context of the OLC suggests the April 1 opinion represents a sharp break from historical norms, not a reinstatement of original constitutional understandings.

The practical consequences of the OLC memo are immediate: the Trump administration is no longer required to preserve records under the executive branch's legal interpretation. Records can theoretically be discarded without triggering the PRA's protections or notice requirements. However, if a federal court rules the PRA constitutional—which is highly likely given Supreme Court precedent—then the administration's position becomes illegal. The gap between the OLC's binding authority within the executive branch and courts' ultimate authority to override it creates uncertainty for archivists, White House counsel, and historians about which legal regime governs records preservation in the interim.

The OLC memo arrives in the context of Trump's first term dispute over classified documents at Mar-a-Lago. The 2022 FBI search of Trump's residence recovered boxes of presidential records he had removed from the White House. Now, with the OLC declaring the PRA unconstitutional, the Trump administration argues it had no legal obligation to preserve or transfer those records in the first place. The memo effectively retroactively justifies the Mar-a-Lago situation and prospectively permits similar actions going forward, subject to court intervention.