The Trump Justice Department has determined that the 1978 Presidential Records Act violates the Constitution, according to a senior White House official who spoke with Axios. The legal conclusion sets the stage for a potential showdown over whether the president must surrender official documents to the National Archives when he leaves office.
The law, enacted during the post-Watergate era to prevent government corruption, mandates that all presidential records belong to the federal government. Under it, when a president departs, the White House transfers documents to the National Archives and Records Administration, which later releases them publicly.
Trump's legal team argues Congress lacks the power to compel the executive branch to preserve every record. "Congress does not have the power to compel an entire branch of government to create and save every single piece of paper," the White House official stated. The administration's position is that the law "exceeds Congress' powers at the expense of the constitutional independence and autonomy of the executive branch."
History of Conflict
Trump's relationship with the records law is contentious. During his first term, he tore up documents that staff had to reassemble. When he left office in 2021, he retained numerous official records, including classified materials. The Justice Department under President Biden indicted him on 37 counts related to alleged mishandling of those documents, with prosecutors presenting images of boxes stored in a Mar-a-Lago bathroom. That case was dismissed after Trump's 2024 election victory.
The White House maintains it is not destroying documents. Employees have been instructed to preserve records for "historical value, the administrative record of policy decisions and actions, litigation needs, and to explain past actions and guide future ones," the official said. Electronic documents and emails are not being deleted.
Trump's team argues that Congress can obtain executive branch information through negotiation rather than legal mandate. "Congress has always been able to obtain information from the executive branch via the give and take of the negotiation process," the official said. "President Trump will continue to do just that."
The administration is weighing next steps and plans discussions with the National Archives about how to proceed. It remains unclear whether the Trump team will seek congressional repeal or modification of the law, or mount a court challenge.
Any attempt by Trump to retain classified materials when leaving office in 2029 would likely trigger legal battles, particularly if Democrats control either the House or Senate at that time.
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