Justice Department Declared the Presidential Records Act Unconstitutional as Trump Moved to Control His Records and Build a Privately Run Library

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On April 1, 2026, the Justice Department's Office of Legal Counsel concluded in a 52-page opinion that the Presidential Records Act of 1978—the post-Watergate law establishing that presidential records belong to the public—is unconstitutional, and that President Donald Trump "need not further comply with its dictates." The next day, White House Counsel David Warrington issued internal guidance instructing staff that the guidance replaced the Act. The two documents advanced a claim that Trump, not the public, owns the records of his presidency, and that Congress lacks the power to compel their preservation and transfer to the National Archives.

The moves formed part of a broader effort. Days after his second inauguration, Trump began raising money for a $1 billion presidential library planned as a glass tower on the Miami waterfront—one that, unlike the presidential libraries operated for eight decades by the National Archives, would be privately controlled, would keep his papers under his own management, and would give him sole discretion over which records survive or reach the public. On May 20, a federal judge blocked the new records policy and held the Act likely constitutional, and the administration said it would appeal.

Background: The Law and Its Origins

Congress passed the Presidential Records Act in 1978 and it took effect in January 1981, making Ronald Reagan the first president subject to it. Signed by President Jimmy Carter, the law changed the legal ownership of presidential records from private to public. It requires that official records of the president and vice president be preserved, transferred to the National Archives and Records Administration (NARA) when a president leaves office, and eventually made available to the public—generally through Freedom of Information Act requests five years after a term ends, with the ability to restrict certain materials for up to 12 years. The president's purely personal records are excluded, and the president may dispose of records lacking "administrative, historical, informational, or evidentiary value" after consulting the archivist.

The law was a direct response to Watergate. In July 1974, the Supreme Court unanimously ordered President Richard Nixon to surrender secret White House tape recordings. After Nixon resigned weeks later and moved to control the tapes, Congress placed his materials in NARA's custody, and in 1978 extended the principle of public ownership to all future presidents. As the NPR account of the current dispute noted, the fight over who owns a president's papers has run for more than half a century.

Trump has clashed with the law before. When he left office in 2021, he took 15 boxes of records—some marked classified—to his Mar-a-Lago estate in Florida, and NARA spent months seeking their return. The FBI searched the estate in August 2022, and special counsel Jack Smith later brought more than three dozen charges over the alleged mishandling of classified documents and obstruction. Smith dismissed the case after Trump won the 2024 election, citing longstanding Justice Department policy against prosecuting a sitting president, and Trump regained control of the seized items in early 2025. Timothy Naftali, the former director of the Nixon Presidential Library, described the administration's attack on the Act as an attempt at "post facto vindication" for having taken public property to Mar-a-Lago.

The Justice Department Opinion

The opinion was written by T. Elliot Gaiser, the Assistant Attorney General leading the Office of Legal Counsel, and was first reported by Axios before its public release. Gaiser argued the Act "exceeds Congress's enumerated and implied powers and aggrandizes the Legislative Branch at the expense of the constitutional independence and autonomy of the Executive." He drew an analogy to the judiciary, writing that just as Congress could not expropriate the papers of the Chief Justice, it cannot expropriate those of the president. The opinion also contended that the Act "serves no identifiable and valid legislative purpose" and that "Congress cannot preserve presidential records merely for the sake of posterity."

An OLC opinion sets the executive branch's internal legal position but does not change federal law; a court ruling or an act of Congress would be required to overturn the statute. In practice, the finding cleared the way for the White House to try to set its own recordkeeping policy in place of the Act's requirements.

The position drew support from advocates of expansive executive power. Gene Hamilton, who served as deputy White House counsel and now leads the nonprofit America First Legal, argued that it is constitutionally untenable for Congress to dictate what a president does with his paperwork; his organization had published a white paper in 2023 asserting presidential control over records. Acting Attorney General Todd Blanche, who had represented Trump in the classified-documents case, rejected the suggestion that the opinion would undermine transparency, saying the administration had been more transparent than its predecessors.

Critics called the reasoning a departure from settled law. Matthew Connelly, a Columbia University historian, said the move showed an effort to make the presidency answerable to no one, "not even the court of history."

The White House Records Policy

Warrington's April 2 memo, released publicly in later court filings, told staff that although the administration no longer considered itself bound by the Act, employees should preserve material related to the performance of their duties. But it drew a distinction for text messages: those reflecting "personal conversations, workplace gossip, ministerial tasks or other workplace minutiae" need not be preserved, while messages that were "the sole record of official decision-making" or contained unique information had to be saved. The guidance encouraged staff to summarize exchanges in emails or memos rather than retain the messages themselves.

The memo did not address what steps Trump or Vice President JD Vance should take with their own records, nor did it lay out any plan to transfer White House documents to the Archives at the end of the term. In a subsequent hearing, Judge Bates observed that the policy appeared to leave out disappearing electronic communications such as Signal messages, and that it addressed only email and text rather than all electronic records the Act covers.

The Legal Challenge and the Bates Ruling

Two lawsuits followed. The American Historical Association—founded in 1884 and the largest membership organization of professional historians—joined the watchdog group American Oversight, while the Freedom of the Press Foundation and Citizens for Responsibility and Ethics in Washington (CREW) brought a parallel case. The plaintiffs asked the court to declare the OLC opinion unlawful and order White House officials to comply with the Act, warning that the administration's position created an immediate risk that records documenting official actions could be permanently lost.

On May 20, 2026, U.S. District Judge John D. Bates, a George W. Bush appointee, granted a preliminary injunction in a 54-page opinion. Bates found the Act "likely constitutional," writing that Congress "may prospectively designate presidential records as federal property and then regulate that property" under the Property Clause. He said the OLC opinion rested on a "stark misreading" of Supreme Court precedent and rejected the argument that the Act was invalid because presidential papers had been treated as personal property before 1978. Opening his opinion, Bates quoted the line from George Orwell's "1984" that appears in the plaintiffs' filings—"Who controls the past controls the future"—and, invoking the inscription on the National Archives building, wrote that adopting the government's position would defy the words "What is past is prologue." The presidency, he added, is a singularly important institution, but "that gravity does not free it from modest constraint."

The order directs the White House Office, the National Security Council, the U.S. DOGE Service, and the president's advisers to comply fully with the Act, including by preserving text and Signal messages and copying them to official accounts. It names among those covered White House chief of staff Susie Wiles, deputy chief of staff Stephen Miller, the National Security Council, the Council of Economic Advisers, and employees of the Executive Office of the President. The injunction, which took effect May 26 and has no end date, excludes Trump, Vance, the National Archives, the archivist, the Justice Department, and the attorney general, on the ground that a court generally may not enjoin the president in the performance of his official duties. Bates noted, however, that records the president transmits to staff would still trigger those staff members' duties under the Act.

The plaintiffs called the ruling a victory for accountability. Chioma Chukwu of American Oversight said the case was about whether a president can treat government records as personal property. CREW president Donald Sherman said the administration had acted as though the records were its own "to destroy or hoard at will."

The White House said it would comply while appealing. Spokeswoman Abigail Jackson said Trump was committed to preserving records from his time in office and that the ruling "fundamentally misunderstands the Administration's position."

The Presidential Library

Trump's son Eric unveiled the first renderings of the planned library on March 30, 2026, in a video assembled with artificial intelligence and posted to social media. The designs, credited to the Coral Gables firm Bermello Ajamil & Partners, depict a glass skyscraper—reported at more than 1,000 feet—rising over Biscayne Bay with "TRUMP" in gold lettering near the top. Interior renderings show replicas of the Oval Office, the Rose Garden, and a ballroom modeled on Trump's planned White House expansion, along with gold escalators evoking his 2015 campaign launch, a gold statue, and, as a lobby centerpiece, the Boeing 747-8 jet gifted by Qatar and valued at roughly $400 million. The renderings notably lacked the traditional hallmarks of a research library, such as book stacks or archival workspaces.

Trump has said the building could "most likely" also house a hotel, retail sales of Trump-themed merchandise, and other for-profit ventures. As an educational facility, the library would be exempt from about $1 million a year in state and local property taxes, according to a court filing.

The 2.6-acre waterfront parcel was, until recently, a parking lot for Miami Dade College. The college's trustees voted to transfer it to the state, which conveyed it to the library foundation—for $10, with a deed condition that construction begin within five years. The land was appraised at more than $67 million and, according to a real estate consultant cited by The New York Times, could sell for at least $360 million. The transfer drew a lawsuit from retired professor and local historian Marvin Dunn, who argued the public had not been adequately notified under Florida's open-meetings law; a court dismissed the case after the board held a second vote in December 2025. An October poll found 74% of Miami-Dade voters opposed giving the land away, including 29% of Republicans.

Central to the historians' and watchdogs' concerns is that the library would have no role for the National Archives. The foundation would curate the exhibits and hold Trump's papers, leaving him to decide how his presidency is portrayed and which records to keep, share, or destroy.

The Obama Precedent

Trump's foundation has pointed to the Obama Presidential Center as a precedent. Barack Obama was the first former president to separate his center from the National Archives, in part to avoid a federal requirement—tripled by Congress in 2008 to 60% of construction costs—that presidents raise endowment funds toward the operation of their libraries. The roughly $850 million Chicago center, which opened in June 2026 and features a 225-foot tower nicknamed the "Obamalisk," houses no presidential records; Obama's records were digitized and are stored at a NARA facility in College Park, Maryland, and remain accessible through the Archives.

Many historians have criticized the Obama model, arguing that the educational value of a presidential library depends on housing a professionally maintained federal research facility in one location. But as critics note, the distinction is that Obama's records remain in public custody, whereas Trump seeks to keep his own. Lauren Harper of the Freedom of the Press Foundation called the proposed building "a shrine to the story that he wants to tell," adding that she would call it "the Trump Miami tower because it's not a library."

Fundraising and Transparency Questions

The library's fundraising has itself become a subject of congressional inquiry. The first $63 million came as settlements from four companies—ABC, Paramount, Meta, and X—that had resolved lawsuits Trump brought against them, with ABC's $15 million agreement stemming from a December 2024 defamation settlement involving anchor George Stephanopoulos.

The nonprofit created to receive those payments, the Donald J. Trump Presidential Library Fund, Inc., was incorporated in December 2024, administratively dissolved in September 2025 after failing to file a required annual report, and formally dissolved that December. A second entity, the Donald J. Trump Presidential Library Foundation, Inc., had been formed in May 2025 with a nearly identical mission but a different incorporator. Senators Elizabeth Warren and Richard Blumenthal and Representative Melanie Stansbury pressed the four companies to account for the money; ABC said it expected to direct its payment to the new foundation, while Paramount, Meta, and X confirmed their payments but cited confidentiality agreements and offered no detail on the funds' whereabouts. Federal law does not require presidential library nonprofits to disclose their donors—a gap that watchdogs warn could turn such libraries into a channel for pay-to-play influence, given that donors and foreign governments remain subject to decisions made by the sitting president's administration.

The trustees of the foundation, a nonprofit charity, include Eric Trump and Trump's son-in-law Michael Boulos. Like other presidential libraries, Trump's would be financed entirely by private donors, but unlike past presidents—who generally raised most of their money after leaving office—Trump began the effort at the start of his second term.

Changes at the National Archives

The Archives, whose demand for the Mar-a-Lago records helped trigger Trump's prosecution, became an early target. Shortly after taking office, Trump fired the chief archivist, Colleen Shogan, and named Secretary of State Marco Rubio to lead the agency; Rubio in February delegated control to a senior adviser, James Byron. Byron, 33, took leave from his role as chief executive of the Nixon Foundation—an organization that had feuded for years with the Archives over the Nixon library's Watergate exhibit. In May 2025, Byron emailed private presidential foundations soliciting proposals to take over more library and museum functions from the government; foundations tied to Nixon, Reagan, Carter, and Kennedy expressed interest. Byron left the Archives in early May 2026, saying in a statement that he had cut costs and refocused staff on archival work. The agency employs roughly 2,500 people and spends about $92 million a year operating 16 presidential libraries.

What Is at Stake

Historians and records experts warn that the durable question is not the design of a building but access to the documentary record. Jason R. Baron, a former director of litigation at the National Archives, said that if Trump prevails, he could assert personal property rights to block future investigations that rely on subpoenas of his records, adding that there would then be "no guarantee that those records will ever be made accessible to the public." The historian Michael Beschloss has described the archetypal presidential library as a place that uses documents and objects to educate the public about a president's era and decisions—a function that depends on the records being preserved and open.

The plaintiffs and their allies have also pointed to legislative remedies. Senator Warren has proposed a Presidential Library Anti-Corruption Act, and government-transparency advocates have urged Congress to strengthen the Act and increase funding for the Archives' declassification work. For now, the statute remains in force, the White House policy is enjoined, and the appeal—and the ultimate fate of the records when Trump's term ends in January 2029—remain unresolved.