DOJ Presidential Records Act argument threatens to send us back to time of presidents burning papers

Prior to 1978, U.S. presidents could do what they pleased with the records from their time in office. They owned them.

But in 1978, the Presidential Records Act established new rules for the official records of a president. Passed in the wake of Watergate, when President Richard Nixon tried to keep incriminating materials from being made public, the law changed who legally owned the papers: It was now the American public.

Under the act’s terms, “all records must be furnished to the White House Archivist and ultimately made subject to public disclosure … and the President may not discard or destroy records without the express agreement of the Archivist.”

When he signed the act, President Jimmy Carter heralded it as a way to “make the Presidency a more open institution” and ensure “that our Government … merits the trust of the people from whom a President and his Government derive their power.”

But now the Trump administration wants to undo the reform that put presidential papers in the hands of the public.

On April 1, 2026, the Justice Department’s Office of Legal Counsel, known as the OLC, released an opinion claiming that the Presidential Records Act is unconstitutional. Its opinion says that Congress lacks authority to regulate what happens to documents maintained in the executive branch and, as a result, the Presidential Records Act violates the separation of powers.

Public interest groups and some historians responded to the OLC memo with alarm. The watchdog group American Oversight called the Presidential Records Act a bulwark against the possibility that presidents will “hide evidence of corruption, abuse of power, and misconduct from the public …” On April 6, 2026, the group filed a lawsuit seeking to prevent the president from acting on the OLC memo.

Whether the Trump administration or American Oversight is right about the Presidential Records Act is likely to be determined by a judge. In the meantime, the significance of the OLC’s opinion cannot be overstated.

That’s because the Office of Legal Counsel is “the Executive Branch’s preeminent legal advisor,” wrote federal judge Florence Pan in 2025. “Executive Branch agencies treat OLC’s legal conclusions as binding.”

I’ve written about secrecy in government, and the argument about the Presidential Records Act has a familiar ring. It is the latest version of an ongoing conflict about how much transparency is necessary and desirable in American government.

Neglected, burned, sold, vanished

Throughout most of U.S. history, presidential records have been treated as the president’s personal property. They could dispose of them as they wished.

The Indiana University library’s Guide to Presidential Papers, Congressional Papers, and Classified Materials says, “Sometimes the Library of Congress purchased a president’s papers from his heirs, as in the case of George Washington. Sometimes the president’s heirs sold off or donated various parts of the collection to different collectors and organizations.”

Some presidential materials were neglected and vanished. And one president, Martin Van Buren, burned some of his papers.

The idea that presidential papers had some public value began to emerge in the 20th century. In 1934, Congress passed legislation establishing the National Archives. It charged the new agency with preserving the official records of the federal government.

However, that legislation did not require that the president turn over his records to the archives. So in 1955, Congress passed the Presidential Libraries Act.

That law was designed to encourage presidents to turn over their records to the federal government. It also provided funding for presidential libraries to provide places to keep presidential records and make them available to the public. But here again, there were no teeth: The law did not require a departing president to give anything to the government, nor to build a library to house his papers.

All that changed in the wake of the Watergate scandal. That’s when it became clear that, but for the intervention of the U.S. Supreme Court in the 1974 United States v. Nixon case, Nixon intended to cover up what had happened and would have gotten rid of his incriminating White House tapes.

The passage in 1978 of the Presidential Records Act was a response to the Nixon scandal. Yet as attorney Sara Worth writes in a blog post for Yale Law School’s Media Freedom and Information Access Clinic, Congress “declined to include an enforcement mechanism to ensure compliance,” instead envisioning “future Presidents’ good-faith cooperation with the statutory mandate.”

DOJ: It’s a negotiation

After the FBI raid on his Mar-a-Lago residence in 2022 uncovered a trove of classified documents that had been removed from government premises, then former-President Trump argued that the Presidential Records Act didn’t apply to what he had done. He said he was actually complying with the act by refusing to relinquish presidential records.

In March 2023, Trump told Fox News that the law is “very specific”: “It says you are going to discuss the documents. You discuss everything – not only docu– everything – about what’s going in NARA, et cetera, et cetera. You’re gonna discuss it. You will talk, talk, talk. And if you can’t come to an agreement, you’re gonna continue to talk.”

Trump apparently meant that there would be negotiation over what constituted a presidential document that could be kept by the former president and what didn’t. That view is hard to reconcile with one of the Presidential Records Act’s unambiguous provisions: “Presidential records automatically transfer into the legal custody of the Archivist as soon as the President leaves office.”

Now, the Office of Legal Counsel is telling Trump that he can ignore that provision.

In addition, in its consideration of the Presidential Records Act, the OLC embraced Trump’s expansive view of presidential power. It argued that the Presidential Records Act is “unconstitutional for two independent but interlocking reasons: It exceeds Congress’s enumerated and implied powers, and it aggrandizes the Legislative Branch at the expense of the constitutional independence and autonomy of the Executive.”

The Justice Department’s lawyers appealed to history and tradition to buttress their conclusion: “Over the first two centuries of the American experiment in self-government, Presidents owned and controlled presidential papers, and Congress obtained such papers through political negotiation and interbranch accommodation, rather than as a matter of right. That historical practice was interrupted by the Presidential Recordings and Materials Preservation Act.”

‘Let the people know the facts’

The idea that citizens have a right to access information of the kind made possible by the Presidential Records Act can be traced back to the Enlightenment. American revolutionary Patrick Henry observed in 1788, “The liberties of people never were, nor ever will be, secure, when the transactions of their rulers may be concealed from them.”

Seven decades later, Abraham Lincoln echoed Henry when he said, “Let the people know the facts, and the country will be safe.”

In our era, that is what laws like the Presidential Records Act make possible. The Presidential Records Act plays an important role in preserving the liberty and security that Henry and Lincoln spoke about.

 

Austin Sarat, William Nelson Cromwell Professor of Jurisprudence and Political Science, Amherst College

This article is republished from The Conversation under a Creative Commons license. Read the original article.

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