‘Historic administration’: Trump White House to preserve records despite DOJ opinion

The White House says that President Donald Trump will preserve his administration’s records, despite the legal opinion of his Justice Department that he doesn’t need to comply with the Presidential Records Act.

The Justice Department’s opinion last week stated the “president need not further comply” with the 1978 law requiring a president to preserve all records, prompting a lawsuit in federal court this week.

“President Trump is committed to preserving records from his historic administration, and he will maintain a rigorous records retention program,” White House spokeswoman Abigail Jackson said in an email response to The Daily Signal regarding the lawsuit over the Justice Department memo.

The FBI raided Trump’s private Mar-a-Lago home in 2022 over a dispute between the then-former president and the National Archives and Records Administration over the rightful keeper of records from his first administration. Special counsel Jack Smith secured a federal grand jury indictment against Trump, alleging he mishandled classified documents. The case was dismissed on procedural grounds.

In a 52-page opinion on April 1, Assistant Attorney General for the Office of Legal Counsel T. Elliott Gaiser wrote that the Presidential Records Act violates the separation of powers and “establishes a permanent and burdensome regime of congressional regulation of the presidency untethered from any valid and identifiable legislative purpose.”

Jackson stated that the White House will maintain its own policy of record preservation.

Staff with the White House Executive Office of the President “undertake records training so they properly preserve all materials related to: the performance of their duties for historical value, the administrative record of policy decisions and actions, and litigation needs,” Jackson said.

“The president will also retain the program currently in place for electronic records—emails and documents cannot be deleted from the White House system,” Jackson added.

However, the American Historical Association, a group of historians, and American Oversight, a liberal watchdog group, don’t want the Trump administration to set its own standards for recordkeeping. The two groups sued on Monday in U.S. District Court for the District of Columbia to require the administration to continue enforcing the law.

“Presidential records are essential for transparency and accountability in our democracy; they are also essential sources for researching and understanding the American past,” said Dr. Sarah Weicksel, executive director of the American Historical Association. “Those records and the history they tell belong not to any individual, but to the American people.”

U.S. District Judge Beryl Howell, a Barack Obama appointee, was assigned to the case, according to Pacer, which monitors federal court cases. Howell has ruled against the Trump administration in previous cases.

Congress passed the Presidential Records Act four years after the resignation of President Richard Nixon, in response to Watergate. The law established that presidential records are the property of the public, not the president.

While the Supreme Court hasn’t determined the constitutionality of the specific law, plaintiffs assert in their complaint that “the Supreme Court upheld the constitutionality of a materially identical law 50 years ago in Nixon v. Administrator of General Services.”

The Justice Department’s opinion ”makes no serious effort to distinguish the Presidential Records Act from the prior law that the Supreme Court upheld, the Presidential Recordings and Materials Preservation Act. Nor could it,” the complaint says.

In his legal opinion, Gaiser invoked the Supreme Court’s 2020 case of Trump v. Mazars USA that imposed increased scrutiny on congressional subpoenas for presidential papers. Perhaps eying a high court showdown, he appeared to make an appeal to the justices in the memo.

“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 memo says.

[Editor’s note: This story originally was published by The Daily Signal.]