The Presidential Records Act, the law that requires presidents to preserve administration records and turn them over to the National Archives at the end of a term, is now under fresh attack after the Justice Department’s Office of Legal Counsel said on April 1 that it is unconstitutional.
Last week, the American Historical Association and American Oversight filed a lawsuit in Washington challenging that opinion and saying they want to preserve “the historical record that belongs to the American people, before it is forever lost.”
The fight matters now because the Office of Legal Counsel’s view strikes at a statute that has governed White House recordkeeping since 1981 and has long been treated as settled practice. Gary M. Stern, who was the National Archives’ general counsel for 26 years and retired last year, said he worked with White House and Justice Department lawyers in five administrations — Bill Clinton, George W. Bush, Barack Obama, Donald Trump and Joe Biden — and also with records representatives of every former president back to Ronald Reagan. Stern said none of them ever suggested that the Presidential Records Act was unconstitutional or that presidents did not need to comply with its dictates.
That history runs back much farther than the modern White House. Congress did not create the National Archives until 1934, and for the first 40 years of its existence presidents voluntarily donated their papers when they left office. Before that, recordkeeping by presidents and agencies was haphazard at best. Congress enacted the Presidential Records Act in 1978 after learning that President Richard M. Nixon wanted to destroy the Watergate tapes, and the law took effect in 1981.
The Justice Department’s opinion says the law interferes with the long-established accommodation process, the back-and-forth that has traditionally governed how the executive branch handles access and preservation questions. Stern argues the opposite: that the law leaves that process intact. The clash is now between an administration legal position and a statute that, by Stern’s account, has been accepted across administrations of both parties and built around the idea that presidential records are not personal property.
The lawsuit in Washington pushes the issue into court before the legal theory becomes policy. If the challengers prevail, the question will not just be how presidents manage papers and tapes; it will be whether a law written to preserve presidential history and guard against corruption can be set aside by legal opinion alone.