In the aftermath of the Watergate scandal, Congress passed a law called the Presidential Records Act. This requires each president’s administration to preserve its records and turn them over to the National Archives and Records Administration (NARA) at the end of the term. Nixon had tried to destroy certain incriminating records when he resigned, viewing them as private property. The law instead gives ownership of these records to the public.
Earlier this month, the Office of Legal Counsel in the U.S. Department of Justice drafted a memo on the Presidential Records Act. Assistant Attorney General T. Elliot Gaiser wrote that the law is unconstitutional. He argued that it goes beyond the powers of Congress and violates the separation of powers by undermining the independence and autonomy of the president.
This memo soon led to a lawsuit by the American Historical Association, an organization of more than 10,000 historians. (A government watchdog organization called American Oversight also joined the lawsuit.) They challenge Gaiser’s interpretation of the Presidential Records Act, pointing out that the U.S. Supreme Court upheld an essentially identical law called the Presidential Recordings and Materials Preservation Act. The lawsuit argues that the executive branch can’t unilaterally wipe out a law that Congress properly passed and that the Supreme Court has implicitly endorsed. It suggests that this would violate the separation of powers in two different ways.
The American Historical Association and American Oversight seek an order affirming the constitutionality of the Presidential Records Act and invalidating Gaiser’s memo. They also ask the judge to order the Trump administration and NARA to comply with their duties under the law, and to order Trump to refrain from destroying records or otherwise violating the law when he leaves office. The lawsuit emphasizes the importance of ensuring that the American public can access and learn from records documenting their nation’s history.
While the topic of this case may seem narrow and obscure, it raises concerns about the separation of powers that resonate more broadly. Thus, its outcome could influence how courts view disputes involving the relationship among the three branches of the federal government.
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