In 1978, Congress adopted the Presidential Records Act, which provided that, after they leave office, presidential and vice-presidential records, other than those of a strictly personal nature, become the property of the United States and must be turned over to the National Archivist for safe keeping. It provides for subsequent access to most of the papers after a five- or 12-year period.
The bill was motivated, in part, by the fear that President Richard M. Nixon might destroy some of the tape recordings that he had made as president and the disclosure of which had led to his resignation.
Supreme Court upheld law governing presidential records
In Nixon v. Administrator of General Services (1977), the Supreme Court had upheld the Presidential Recordings and Materials Preservation Act that had abrogated an agreement that Nixon had made with the General Service Administrator that would have granted him the right to destroy some of his recordings and other documents. In doing so, the Court had denied that the act had violated separation of powers, presidential confidentiality, or First Amendment associational rights or that it constituted an unconstitutional bill of attainder. In 2000, however, the government did agree to pay Nixon $18 million for these materials.
Much like the Freedom of Information Act, the Presidential Records Act is designed to provide public access to decisions that have been made on their behalf. Although the First Amendment by itself is phrased as a negative prohibition against governmental action rather than as an affirmative obligation for access to governmental information, access to such information enhances the freedom of speech and press guaranteed by that amendment to say nothing of more general governmental accountability.
Trump took government records home after first presidency
Upon leaving the presidency in 2021, President Donald Trump took a good many manuscripts to his home in Mar-a-Lago, Florida. Although the primary dispute centered on those documents that were top secret, charges were brought against the president for their possession. The charges were later dropped.
On April 1, 2026, however, T. Elliot Gaiser, the Assistant Attorney General in the Office of Legal Counsel in the Department of Justice, issued a memorandum opinion questioning the constitutionality of the Presidential Records Act and suggesting that the president might not consider himself bound by the act when he leaves office for a second time.
AG argues Presidential Records Act is unconstitutional
Gaiser’s 52-page memorandum opinion is based on two primary arguments, namely that “It exceeds Congress’s enumerated and implied powers,” and that “it aggrandizes the Legislative Branch at the expense of the constitutional independence and autonomy of the Executive.” In elaborating on the first argument, Gaiser argued that the law exceeded: “congressional oversight power because it serves no identifiable and valid legislative purpose”; its preservation power because Congress “cannot preserve presidential records merely for the sake of posterity”; its regulatory power because it regulates “a constitutional office that Congress did not create” and cannot abolish”; and its spending power by allowing Congress to incentivize outcomes with federal funding.” Gaiser also said that the act “restricts rather than empowers the president.”
The opinion, which takes a limited view of congressional powers and an expansive view of those of the president, attempts to distinguish this case from Nixon v. Administrator by arguing that that case “addressed a materially narrower statute under extraordinary circumstances, balancing the asserted interests of Congress and a former President with little attention to Article I.” More aggressively, it further argued that the Nixon was “not only distinguishable. It was also wrong” in deciding that the law did not violate separation of powers.
Assessing presidential administrations without archives
If implemented, the opinion would have a major impact on the ability to gather information to assess actions of presidential administrations.
The American Historical Association and American Oversight have both sued in a D.C. district court to contest this Department of Justice opinion, although it is not clear whether they have standing until Trump, or another president, actually seeks to violate the act. It seems likely that a future president might ask for another opinion that would void Gaiser’s.
John R. Vile is a political science professor and dean of the Honors College at Middle Tennessee State University.