Trump's DOJ Declares Presidential Records Act Unconstitutional to Retroactively Excuse His Document Hoarding

The Trump administration just took a wrecking ball to one of the core accountability laws passed after Watergate, and the timing couldn't be more transparent.

Last week, the Justice Department's Office of Legal Counsel issued a 52-page memo declaring the Presidential Records Act unconstitutional. This is the same law that formed the backbone of the federal criminal case against Donald Trump for hoarding classified documents at Mar-a-Lago after leaving office in 2021. The memo doesn't carry the weight of a court ruling, but it sets legal policy for the entire administration -- and signals exactly how Trump plans to operate without guardrails.

The memo comes from T. Elliot Gaiser, assistant attorney general in the Office of Legal Counsel. According to Axios, which first reported the document, Gaiser was responding to a question from White House counsel David Warrington about whether the Presidential Records Act passes constitutional muster. The memo conveniently doesn't explain why Warrington was asking in the first place.

Gaiser's argument boils down to two claims: First, that Congress exceeded its authority by passing the law because it doesn't fall under the legislature's oversight, regulatory, or spending powers. Second, that the law "aggrandizes" Congress at the expense of executive independence. The kicker? Gaiser writes that the law is unconstitutional "because it restricts rather than empowers the President."

That framing tells you everything you need to know about this administration's view of presidential power: Any law that constrains the president is inherently suspect, no matter how reasonable or necessary.

The Post-Watergate Reform Trump Wants Gone

Before the Presidential Records Act became law in 1978, presidents treated White House documents as personal property. Congress sometimes bought these papers from outgoing presidents, but as former President William Howard Taft noted, this meant "there is lost to public record some of the most interesting documents of governmental origin bearing on the history of an administration."

That system collapsed after Richard Nixon resigned in disgrace in 1974. The recordings and documents Nixon wanted to keep private were the same ones that exposed his crimes. A month after his resignation, Congress passed the Presidential Recordings and Materials Preservation Act to ensure the federal government could preserve records related to official duties.

Nixon sued, claiming the law violated separation of powers. In 1977, the Supreme Court ruled 7-2 against him. The Presidential Records Act built on that framework, making it standard practice for presidents to turn over their White House records to the National Archives when they leave office.

Gaiser's memo dismisses that Supreme Court precedent as "wrong" and "mistaken." This sweeping rejection of nearly 50 years of settled law comes from a lawyer who helped develop the legal theories Trump used to try overturning the 2020 election.

Why This Matters Beyond Trump's Legal Troubles

The memo does double duty: It attempts to retroactively excuse Trump's criminal conduct while gutting congressional oversight for future presidents.

Trump was indicted in June 2023 for willfully retaining national defense information, obstructing justice, and making false statements after leaving office with boxes of classified documents. He stored them at Mar-a-Lago -- a private club where foreign nationals pay membership fees for access. The Presidential Records Act required him to turn those documents over to the National Archives. He didn't. Federal prosecutors alleged he showed classified materials to people without security clearances and directed staff to hide boxes from investigators.

Now Trump's own Justice Department is arguing the law he violated shouldn't exist.

The memo's logic is dangerously broad. It assumes Congress can never pass laws that limit presidential power, even when those limits serve transparency and accountability. The Presidential Records Act was passed by both chambers of Congress and signed by President Gerald Ford -- a Republican who understood the need for reform after Watergate. The Supreme Court already ruled its predecessor constitutional. Gaiser offers no meaningful explanation for why the PRA is different.

If this reasoning stands, future presidents could destroy evidence of corruption, abuse of power, or criminal conduct without consequence. They could treat official records -- emails about policy decisions, documents about government contracts, communications with foreign leaders -- as personal property to be shredded, sold, or hidden.

That's not executive independence. That's impunity.

A Pattern of Destroying Accountability

This memo fits a broader pattern in Trump's second term: systematically dismantling the post-Watergate reforms meant to prevent presidential abuse of power. The administration has already moved to gut inspectors general, undermine the independence of the Justice Department, and shield officials from oversight.

The Presidential Records Act exists because Nixon tried to hide evidence of his crimes. Trump is now arguing that law shouldn't apply to presidents at all -- conveniently, after he was caught doing exactly what the law prohibits.

Congress passed the Presidential Records Act with bipartisan support because transparency matters in a democracy. Citizens have a right to know what their government does in their name. Historians need access to records to understand how decisions were made. Prosecutors need evidence when officials break the law.

Gaiser's memo would eliminate all of that in service of an imperial presidency answerable to no one.

The Justice Department's position doesn't have the force of law -- yet. But it reveals this administration's endgame: a president who can operate in secret, destroy evidence at will, and face no consequences for abusing power. That's not what the Constitution protects. That's what it was written to prevent.