Enacted in the wake of Watergate and the struggle for control of Richard Nixon’s White House tapes, the Presidential Records Act provides that a President’s official records are government property. (An earlier version of the Presidential-records law, passed in 1974, applied only to Nixon.) The law allows a President to exclude personal records, sets out timetables for releasing documents once the President has left office, and provides a mechanism for asserting executive privilege to keep certain material secret. (Trump unsuccessfully sued under that provision when the House Select Committee on January 6th sought access to his first-term records.)
The Administration, in its court papers, presents the Presidential Records Act as an “unconstitutional and ahistorical imposition on presidential autonomy.” Beginning with George Washington, who took his papers home to Mount Vernon and made no provision for public access, Presidents have treated their records as “personal property,” the Administration argues. “Just as it would flout the separation of powers for Congress to require the Supreme Court to broadly disclose its deliberative records to the public pursuant to legislative edict, so it is with the PRA.”
This history is correct but incomplete; it ignores a half century of Presidential compliance. Gary Stern, who served as general counsel of the National Archives for twenty-six years, collaborated with five Administrations—from Bill Clinton’s to Joe Biden’s—on preserving and releasing Presidential records. Under George W. Bush, Stern worked with Brett Kavanaugh, then a White House lawyer, as the White House crafted an executive order implementing the law. Stern recalled that those Administrations “all had their frustrations and complaints.” But “no one ever suggested that the law was unconstitutional,” he told me. “Everyone worked very constructively, including Trump 45 and his White House counsel, to implement the P.R.A. and make it work.”
Worse, the Administration’s account directly contradicts a Supreme Court decision. In 1977, the Justices rejected Nixon’s claim that the previous version of the Presidential Records Act violated the separation of powers and infringed executive privilege. The Court, voting 7–2, said that, given the “safeguards built into the Act” to protect confidential information and “the minimal nature of the intrusion into the confidentiality of the Presidency, we believe that the claims of Presidential privilege clearly must yield to the important congressional purposes of preserving the materials and maintaining access to them for lawful governmental and historical purposes.” In the decades since, of course, historians have mined the tapes and other Presidential material. Imagine an alternate world in which Nixon had instead been free to destroy those records.
The O.L.C. opinion, signed by Assistant Attorney General T. Elliot Gaiser, flicked this precedent aside. Nixon’s case, it asserted, “is distinguishable because it addressed a materially narrower statute under extraordinary circumstances.” Even more audaciously, the opinion added, the Court’s “separation of powers analysis is wrong,” because it fails to recognize that “congressional regulation of presidential records implicates the foundational constitutional principle of executive independence.” It dismissed the majority opinion, by the liberal Justice William Brennan, as reflecting an outdated, ancien-régime understanding of separation of powers, before a conservative majority adopted a new, pumped-up interpretation of executive authority.
O.L.C. similarly discounted congressional testimony the following year by the Deputy Assistant Attorney General, Larry Hammond. “It is well established that the work product of government employees prepared at the direction of their employer or in the course of their duties is government property,” Hammond told lawmakers. “Should Congress choose to extend this principle to cover records prepared or received by the President in the course of his duties, no substantial problems would, in our view, be raised.” The O.L.C. opinion dealt with this inconvenient testimony in a footnote: “That advice has not withstood the test of time.”
I recently spoke with Sarah Weicksel, the executive director of the American Historical Association. She acknowledged, “Ordinary people might think, ‘Oh, what does this have to do with me?’ It actually has a lot to do with all of us. Presidential records are essential for the transfer of power between Administrations and helping lawmakers understand how past decisions were made. They are essential for historians who come five, ten, fifteen, fifty, a hundred years later, asking historical questions about an Administration or about American life in the twenty-twenties. I think what’s the most important thing at stake is the ability of Americans in twenty, fifty years to be able to have access to a full history of the United States in this time period.” Future historians could find themselves searching in vain for records on Presidential decision-making about whether to launch the war with Iran, fire Cabinet secretaries, or grant pardons.
