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.
Federal judge issues injunction against Trump administration
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 the Freedom of the Press Foundation filed suit in the U.S. District Court for the District of Columba asking for a preliminary injunction barring enforcement of this act, and Judge John Bates granted this injunction on May 20, 2026. In so doing he applied the standards established in Winter v. Nat. Res. Def Council, 555 U.S.7, 20 (2008), which required plaintiffs seeking such injunctions to establish that they are “likely to succeed on the merits” are “likely to suffer irreparable harm in the absence of preliminary relief,” and that the “balance of equities” tip in their favor.
Judge Bates granted standing on the basis of “informational injury” to the public and to member of the plaintiffs’ organizations researching the presidency. He further decided that the Presidential Records Act was constitutionally justified both under Congress’s power to regulate federal property under the Property Clause in Article IV, Section 3, of the Constitution and the Necessary and Proper Clause in Article I, Section 8.
Bates interpreted the property clause to include both real and personal property and noted that governmental work product had long been considered to be owned by the government. Although there had been a long period during which presidents were thought to own their records, he ruled that “Congress cannot surrender the legislative powers that the Constitution vests in it,” and that such authority had, in any case, been recognized for the last 50 years.
Bates further noted that the necessary and property clause expanded not only the enumerated powers in Article I, Section 8 but “all other Powers vested by this Constitution in the Government of the United States, or in any Department or Officer thereof.” This included the facilitation of the operations of coordinate branches to “promote efficiency and integrity in the discharge of official duties.”
Bates relied heavily on Justice Robert Jackson’s opinion in the decision in the Steel Seizure Case— Youngstown Sheet & Tube Co. v. Sawyer, 343 U.S. 579 (1952) —which recognized that presidential powers were at their lowest ebb when they were contrary to congressional laws, in this case the Presidential Records Act. Speaking to separation of powers concerns, he observed that there was nothing to indicate that the law had been designed to “grant Congress new powers,” or to “prevent the President from exercising control over an executive agency, or to “gain any structural advantage over the President by dint of the requirements imposed by the Act.”
Bates did not think that the law had a significant chilling effect on the advice that aides might give to the president. He also pointed to the way that the law was designed to prevent immediate release of national security or personal documents and to provisions within the law allowing for judicial review in contested cases. He denied that the law had exerted an “intolerable administrative burden” on the executive branch. Indeed, he pointed out that the Trump administration had complied with the law in Trump’s first administration and into his second.
Noting that “unpreserved or improperly destroyed documents are ‘lost forever to history” and that they could be important to preserving continuity from one administration to another, Bates issued an injunction, effective on May 26, 2025, affecting subordinates of either the president or vice president.
This means that the president has less than a week to appeal to a higher court.
John R. Vile is a political science professor and dean of the Honors College at Middle Tennessee State University.