DOJ Deems Presidential Records Act Unconstitutional

Justice Department opinion finds law exceeds congressional authority and infringes on executive branch independence.

Apr. 3, 2026 at 12:53pm

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A serene, photorealistic painting of an empty Oval Office desk in warm, golden light, conveying a sense of solemnity and political independence.The DOJ's legal opinion could empower future presidents to keep their records private, undoing decades of post-Watergate transparency efforts.Florida City Today

The Justice Department has issued a legally nonbinding opinion concluding that the Presidential Records Act of 1978, which requires presidents to preserve and hand over their records to the government at the end of their term, is unconstitutional. The DOJ argues the law 'unconstitutionally intrudes on the independence and autonomy' of the executive branch.

Why it matters

This opinion could provide legal justification for presidents, including former President Donald Trump, to refuse to comply with the law and keep presidential records private. The 1978 act was passed after the Watergate scandal to increase transparency around the presidency.

The details

The 52-page DOJ opinion, led by Assistant Attorney General T. Elliot Gaiser, argues that the Presidential Records Act exceeds Congress' authority and that presidents should only have to provide records through 'political negotiation and interbranch accommodation, rather than as a matter of right.' Gaiser wrote that 'just as Congress could not constitutionally invade the independence of the Supreme Court and expropriate the papers of the Chief Justice or Associate Justices, Congress cannot invade the independence of the President and expropriate the papers of the Chief Executive.'

  • The DOJ opinion was first reported by Axios on April 3, 2026.

The players

T. Elliot Gaiser

Assistant Attorney General for the Office of Legal Counsel who authored the DOJ opinion.

Donald Trump

Former president whose alleged mishandling of classified documents from his first term was the subject of a 2023 case that could be impacted by this opinion.

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What they’re saying

“Just as Congress could not constitutionally invade the independence of the Supreme Court and expropriate the papers of the Chief Justice or Associate Justices, Congress cannot invade the independence of the President and expropriate the papers of the Chief Executive.”

— T. Elliot Gaiser, Assistant Attorney General for the Office of Legal Counsel

The takeaway

This DOJ opinion could set the stage for future presidents to defy the Presidential Records Act and keep their documents private, rolling back decades of efforts to increase transparency around the presidency after the Watergate scandal.