Trump’s DOJ tells Trump he can hold onto government docs when he leaves office, contrary to Watergate-era law
By Tierney Sneed, CNN
(CNN) — A new memo from the Justice Department says President Donald Trump no longer has to follow a Watergate-era law barring him from holding on to presidential records when he leaves office.
It is the latest action by the administration to stymie transparency, government watchdog groups say, and yet another Trump swipe at the National Archives after its role in prompting the criminal case he faced for allegedly mishandling national defense materials.
The DOJ’s Office of Legal Counsel – which gives legal advice to the executive branch – issued an opinion Thursday that said the Presidential Records Act is unconstitutional.
“(T) he President need not further comply with its dictates,” the opinion said.
No president prior has taken the position that the law violates the separation of powers provisions of the Constitution, said Donald Sherman, the president of Citizens for Responsibility and Ethics in Washington, a left-leaning government transparency group.
The opinion “is part of the President’s ongoing and escalating assault on transparency and oversight,” Sherman said.
The law was passed in the wake of the Watergate scandal and requires that presidents hand over the government documents from their time in office to the National Archives when they exit the White House. It also makes records accessible to future administrations, Congress and, eventually, to the public under the Freedom of Information Act.
Its mandates also helped spur the charges of mishandling classified documents against Trump brought by special counsel Jack Smith; the criminal probe grew out of the difficulties the National Archives had in getting Trump to return government documents he took with him at the end of his first term and investigators discovered that among those records were highly classified materials.
According to Virginia Canter, who worked in the White House Counsel’s Office under Presidents Barack Obama and Bill Clinton, the OLC opinion gives Trump the okay to hold on to sensitive documents when he leaves the White House again and even sell them to the “highest bidder.”
“The ramifications are beyond anything we could imagine,” said Canter, now chief counsel of Democracy Defenders, which has challenged several Trump policies in court.
The White House defended Trump’s commitment to preserving his records in a statement that said his presidential staff “must undertake records training so they properly preserve all materials related to: the performance of their duties for historical value, the administrative record of policy decisions and actions, and litigation needs.”
“The President will also retain the program currently in place for electronic records – emails and documents cannot be deleted from the White House system,” White House spokesperson Abigail Jackson said in a statement, later clarifying the there was “no difference between our position on physical versus electronic records.”
Asked by CNN if Trump was committed to turning over those documents at the end of his presidency, Jackson said, “the administration is already discussing with NARA how to move forward.”
Memo’s impact on oversight
The OLC has historically taken legal views that are very favorable to the executive branch. But even by those standards, Thursday’s opinion the Presidential Records act was extreme, legal experts said.
“There are all kinds of past instances in which OLC has talked about and advised about the Presidential Records Act,” said Jonathan Shaub, a Kentucky Law School Professor who previously worked both in the OLC and the White House Counsel’s office. “I never heard a suggestion that it was unconstitutional, particularly not unconstitutional in its entirety, on its face.”
The OLC says that the law unconstitutionally regulates presidential conduct and threatens to “impede” the presidency in the way “constrains the President’s day-to-day operations.”
Congress, the opinion says, lacked a “valid legislative purpose” in passing it, suggesting that lawmakers could never have “legitimate” reason to study the internal workings of the White House.
The opinion also said the relevant constitutional clause allows Congress only to pass laws that boost the presidency, and that Congress cannot pass laws that constrain the presidency.
“The memo mischaracterizes the Presidential Records Act as regulating the President’s constitutional functions, and that’s really what its analysis rests on,” said Liz Hempowicz, the deputy executive director of the left-leaning government transparency group American Oversight. “In fact, the Presidential Records Act governs the ownership and preservation of federal property records, which is an area that is squarely within Congress’s authority.”
The opinion does not have the weight of a legal opinion issued by a court, but OLC memos are seen as binding on the executive branch unless a court tells an agency otherwise.
The law does not require the president to give any documents to the Archives until the end of his presidency. But its records preservations provisions have the effect of prohibiting the destruction of documents that might be of interest to Congress in its near-term oversight.
Those oversight efforts usually involve a give-and-take between the legislative and executive branch; the OLC leaned on that dynamic to argue the leverage points Congress already has – such as its funding powers or its role in confirming appointee – mean there is no valid legislative purpose for law.
“The traditional back-and-forth process that the OLC opinion is referring to (between Congress and the President) … can’t happen if the President is free to destroy stuff,” said Gregg Nunziata, who worked for several Republican offices in the Senate and now leads Society for the Rule of Law, a group of conservative lawyers and former public servants that has pushed back against Trump..
Limited ways to challenge in court
Government transparency groups are eager to put the OLC’s position before a court, but acknowledge that their avenues for doing so may be limited, because of procedural rules that dictate when a lawsuit can be brought.
Who would have standing now to sue the administration is not immediately obvious, since the law’s most significant provision doesn’t snap into effect until the end of administration and the White House says that it is sticking to its previous standards for retaining the records.
The last major legal action brought under the Presidential Records Act was the lawsuit the Justice Department brought in 2022 against former Trump adviser Peter Navarro, for allegedly failing to turn over communications to the Archives related to his White House duties that he held on his personal email account.
FOIA access for public at risk
One key question is how the Archives – which did not respond to CNN’s inquiries for this story – will understand how it applies to documents it already holds from past presidencies.
Under the law, a president’s records cannot be obtained by FOIA until at least five years after his exit from office.
“Now that five years has passed since the end of the first Trump administration, the OLC opinion leaves open whether the Trump Justice Department will apply it retroactively to say that records from his first administration should have been deemed ‘personal’ in nature, and are not accessible under provisions of the Freedom of Information Act incorporated into the PRA,” said Jason R. Baron, a former director of litigation at the National Archives and Records Administration.
A FOIA case in which the Justice Department was defending the refusal to turn over documents because it had determined the Presidential Records Act was unconstitutional would give a court the opportunity to weigh in.
Early into the second term, Trump fired National Archivist Colleen Shogan, who was not even in the role when the Archives sought the return of the documents Trump took with him after his first administration. On Friday, the White House confirmed that the current head of the Government Services Administration, Ed Forst, is serving as the acting National Archivist, while Trump’s nominee for the permanent role awaits confirmation
Given Trump’s past conduct with government documents, it seems guaranteed the nominee, Bradford Wilson, will be asked by the Senate for his views on the Presidential Records Act.
Baron, who is now a professor at the University of Maryland, expects Wilson to take the position that he is bound by the OLC’s opinion.
“Whatever the fate of the Presidential Records Act, it would be a tragedy if the next Archivist fails to aggressively lobby for NARA taking custody of all White House records related to government business,” he said. “The OLC opinion undermines government accountability by diminishing our ability to know what our government has been up to, and the next Archivist should not be a party to it.”
CNN’s Jamie Gangel contributed to this report.
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