WASHINGTON, D.C. — The Justice Department's Office of Legal Counsel concluded earlier this month that the Presidential Records Act is unconstitutional because it violates the separation of powers. The opinion represents internal legal advice to the executive branch and does not itself alter the 1978 statute, which remains in force.

T. Elliot Gaiser, head of the Office of Legal Counsel, wrote that the Presidential Records Act "unconstitutionally intrudes on the independence and autonomy of the President guaranteed by Article II." He also wrote that the law "establishes a permanent and burdensome regime of congressional regulation of the Presidency untethered from any valid and identifiable legislative purpose."

The American Historical Association filed a lawsuit in federal court in Washington, D.C., last week asking a judge to block government officials from destroying presidential materials. Both sides of the legal dispute are expected to appear in court early next month.

The Presidential Records Act was passed by Congress in 1978 to apply the concept of federal custody of presidential records to future presidents. Its origins trace to July 1974, when the Supreme Court unanimously ordered President Richard Nixon to turn over White House recordings to a special prosecutor. Nixon left office a few weeks later, and Congress subsequently passed a law placing his presidential papers in the custody of the National Archives.

Timothy Naftali, former director of the Nixon Presidential Library, linked the legal opinion to the recovery of 15 boxes of White House records from Donald Trump's Mar-a-Lago resort and the subsequent obstruction of justice indictment, which the Justice Department dropped after Trump won re-election. "His attack on the Presidential Records Act is an attempt at post facto vindication for having taken public property to Mar-a-Lago," Naftali said. He also asked, "Do we want future presidents to be able to destroy at will documents that do not put them in the best light?"

Gene Hamilton, head of America First Legal, which issued a white paper in 2023 asserting that a president has unequivocal power over his records, defended the legal conclusion. "The notion that the United States Congress gets to tell the President of the United States what he gets to do with his paperwork is, from a constitutional perspective, insane," Hamilton said.