A high-level legal adviser told President Trump last week that he no longer needs to obey a half-century-old federal law that requires him to protect and not destroy the official records of his time in the White House.  Under the Constitution, those records are under the complete control of the President and he can be trusted to deal with them in good faith, the adviser concluded.

The 52-page opinion declared that all parts of a 1978 federal law, the Presidential Records Act, are an unconstitutional interference with presidential powers and cannot be enforced.  The opinion is not binding on the courts, and it could be tested if someone with a right to sue makes such a challenge.

That law was passed by Congress in the wake of the Watergate scandal that drove President Richard M. Nixon out of office.  It blocked him from destroying tape recordings and other official records that were needed in criminal trials of some of Nixon’s aides. Nixon himself was pardoned by his successor, President Gerald Ford, for any crimes committed.

The new opinion was issued last Wednesday by Assistant U.S. Attorney General T. Elliot Gaiser, who heads the Justice Department’s Office of Legal Counsel.  That office provides government-wide advice on legal questions about performing official duties.  Gaiser was responding to a request from the White House about the constitutionality of the law.

The final paragraph of the document reads: “The PRA is unconstitutional, and the President need not further comply with its dictates.”  Aside from a complex system of protecting official presidential records, the 1978 Act required presidents to take special care not only to create but also to preserve those records; the law requires presidents to notify Congress if they planned to destroy any of those records, and such a plan could be blocked at least temporarily.

The 48-year-old law was in the background when a special federal criminal prosecutor, Jack Smith, conducted a wide-sweeping investigation of Donald Trump, resulting in 40 criminal charges for mishandling of highly classified official documents at his private home, Mar-a-Lago, in Florida after leaving office following his first term.  Trump was not charged with violating that law; the charges focused on the federal Espionage Act.

A federal judge in Florida dismissed all of the Mar-a-Lego charges in July 2024, and the case was abandoned by the special prosecutor after Trump won reelection in 2024.  The special prosecutor’s official report on that investigation remains blocked by that same judge, District Judge Aileen Cannon, from being made public, although that issue is under challenge in a federal appeals court.

Trump was required under the 1978 law to turn over to the federal Archivist the documents that he had kept at Mar-a-Lago, but he could now move to retrieve them, relying on the new legal advice  It would be no surprise if he were to do so, since he has made a series of legal efforts to erase as much of the criminal record as he can, including pursuing a current appeal of the 34 guilty verdicts against him by a state jury in New York in a case growing out of his election campaign in 2016.

The Mar-a-Lago documents at issue in the special prosecutor case have never been made public; many of them contain classified secrets.   It is unclear whether, if those documents were to remain intact, there could be a renewed effort in the future to prosecute Trump for how he handled them.

The Presidential Records Act challenged in the new Justice Department document has not been tested in court.  However, in a historic ruling in 1977, in the case of Nixon v. Administrator of General Services, the Supreme Court upheld a narrower 1974 federal law on presidential records.  The Court rejected a series of constitutional challenges to that earlier law, made by former President Nixon.  The new Justice Department opinion last week concluded that the ruling was wrong, arguing that the decision did not give adequate consideration to how the earlier law interfered with presidential independence and authority.

The new document, in fact, dismissed the 1977 ruling, saying it was a product of the ancien regime (translated, the old system) of the mid-20^th Century Supreme Court, “not the more thoughtful approach appropriately required by subsequent developments in Supreme Court doctrine” dealing with the constitutional concept of separating the powers of the national government.

At issue in the ruling was the fate of 43 million pages of White House documents and 880 tape recordiings.

The 1977 decision was made by a 7-to-2 majority, with that majority dominated by the liberal Justices on the Court at that time.  The dissenters were the Court’s most conservative members then.  All nine of those Justices have since died.

Today, the Court is dominated by a six-Justice conservative majority, one that is strongly in favor of building up the power of the Presidency – as it did in July 2024, creating broad legal immunity to Trump against criminal prosecution.  (That decision figured in a small way in the new Justice Department opinion.)

The main thrust of that new advice was that Congress simply lacked the authority, under the Constitution, to impose controls on presidential records when Congress had not demonstrated that it needed those controls as a basis for specific new legislation on document preservation.

Historians of the Presidency and of the Constitution will find the new advice deeply disappointing for its denunciation of efforts by Congress to preserve White House documents for the future.  The document declared flatly that the 1978 law “exceeds any preservation power because Congress cannot preserve presidential records merely for the sake of posterity.”

The document said that, in undertaking in 1974 and again in 1978 to adopt federal laws dealing with the disposition of presidential records, Congress had abandoned two centuries of U.S. history during which White House records were treated as the personal property of the president and that any dispute with Congress over access to those records was worked out in political compromise, not broad legislative intervention.

If the Constitution were interpreted to allow this broad interference with presidential records, the new advisory contended, there would be no reason why Congress could not pass a “Judicia Records Act” requiring members of the Court to create official records of their proceedings, and turn them over to the government archives.

The Justices throughout history have compiled their own records and have made their own choices about what to do with them after they leave the Court.  Many Justices’ records are kept in the Library of Congress’ Manuscript Division in Washington, but others are scattered among private or university libraries.  All of the Court’s formal opinions and orders are available publicly in bound volumes.