How the DOJ’s latest move could put Trump’s records out of reach

After the Watergate scandal, President Jimmy Carter signed the Presidential Records Act into law. It requires official presidential records to be turned over to the National Archives when each president leaves office.

In 2022, after leaving office, President Donald Trump initially refused to fully comply, forcing the National Archives to travel to Mar-a-Lago to retrieve large quantities of records, including classified documents. Later, the FBI executed a search warrant to retrieve more classified materials.

Special Counsel Jack Smith investigated Trump’s handling of classified documents and in 2023, a grand jury indicted him, partially under the Espionage Act. That case was thrown out in 2024 by Judge Aileen Cannon.

On Thursday, President Donald Trump’s Department of Justice Office of Legal Counsel issued an opinion claiming that the Presidential Records Act (PRA) is unconstitutional, as NBC News reported.

That opinion argues that President Trump does not have to turn over his presidential records at the end of his term, NBC added.

The PRA “exceeds Congress’ powers and it does so at the expense of the autonomy of the presidency, T. Elliot Gaiser wrote in the opinion, noting that Congress can’t order the papers of Supreme Court justices to be sent to the archives,” NBC reports. “The determination is a signal that the president will not turn over his documents to the archives.”

The opinion, a memorandum, reads: “You have asked whether the Presidential Records Act of 1978 (‘PRA’ or ‘Act’) is constitutional. We conclude that it is not.”

The New York Times’ Charlie Savage commented that the opinion, “Sets Trump up to claim a right to take it all in 2029-esp if he really does issue a blanket declassification order 1st.”

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