The White House quickly embraced a new records-preservation policy after the Justice Department deemed a presidential records law unconstitutional, dismissing decades-old requirements in favor of discretionary guidelines.
The Justice Department’s Office of Legal Counsel issued its opinionApril 1, declaring that the law, known as the Presidential Records Act, exceeded Congress’s powers. Within days, staffers at the Executive Office of the President received an email from the White House counsel instructing them to follow a new records-preservation policy in line with the OLC opinion and attend a training.
White House Counsel David Alan Warrington wrote to the staffers that the Presidential Records Act was “a significant departure from historical practice.” Warrington’s memo was included in a lawsuit over the OLC opinion.
The OLC is a unit of the Justice Department that provides legal advice to the executive branch, and its opinion sparked immediate concerns about how the day-to-day records of presidential activity would be preserved. The PRA says records from a presidency belong to the public rather than to the president, and it requires the White House to preserve all official materials.
Ultimately, it is up to the courts to determine whether the law is constitutional, but in the meantime, the Trump administration has seized on the OLC opinion to set its own recordkeeping policy. Experts say that the new White House memo weakens safeguards by making previously mandatory preservation rules discretionary, and that there will be clear differences between how staffers are now asked to preserve records compared with previous presidencies, including in President Donald Trump’s first term.
A February 2017 memo from then-White House lawyers to all White House personnel, for example, strictly warned staff against the use of personal devices for official business. It said they were “required to conduct all work-related communications on your official EOP email account, except in emergency circumstances.” (EOP refers to the Executive Office of the President.)
The wording in the new memo, dated April 2, is less definitive, saying that EOP staff “should” conduct their work-related communications on their official work email accounts. It also says EOP staff “should” avoid using their personal devices for official government business “whenever possible.”
The memo does not outline how Trump or Vice President JD Vance should preserve their records.
A White House official, speaking on background to discuss internal processes, told The Washington Post that “it is impossible to view the memo and the mandatory training as anything but a requirement that staff preserve records.”
However, Jason R. Baron, a University of Maryland professor who focuses on the intersection of archives and the law, said the new White House memo “seriously undermines government accountability in making recordkeeping at the White House largely discretionary rather than mandatory.”
Noting that the memo is framed as guidance rather than a legal mandate, Baron wrote in an email that nothing in the policy “prevents the White House from directing the transfer or destruction of White House records, including tens of millions of e-mails, either before or after the end of the president’s second term in office.”
Similarly, the new EOP guidance appears to be less strict than the 2017 memo on how to memorialize official materials that are sent to personal accounts by accident. The 2017 directive said emails or texts that are sent to (or from) personal accounts with material covered under the PRA must be forwarded to an official White House platform within 20 days “via a screenshot or other means,” adding that “any employee who intentionally fails to take these actions may be subject to administrative or even criminal penalties.”
The new guidance says such texts must be preserved only “when they are the sole record of official decision-making, government action, or contain unique information not available elsewhere.” Staffers are “encouraged” to memorialize the information in those exchanges “in a more accessible format, such as an email or memorandum,” it adds, rather than directly taking a screenshot or otherwise sharing the relevant exchange in its entirety.
Patrick Eddington, a senior fellow at the Cato Institute, has argued that the OLC opinion could make voter-suppression efforts, for example, harder to detect. He said in an interview that encouraging EOP staffers to draft memorandums in lieu of sharing screenshots “is a great way to rewrite history.”
The White House official maintained that staff have been instructed to perform all work on their work device and that an approved Signal app can be downloaded onto White House phones, which also saves messages.
Baron pointed to a section of the memo that says EOP components are “free to retain” previous record-preservation policies, noting that this also means they are free not to. “While paying lip service to the need to preserve White House records, the memo actually gives EOP staff license to do the exact opposite,” he said.
Congress passed the Presidential Records Act in 1978 to address fears that President Richard M. Nixon would destroy documents from his presidency after the Watergate scandal. It established that presidential records are public property.
Since then, its constitutionality has gone largely unchallenged, and the Justice Department’s unexpected declaration to the contrary has already sparked legal action.
American Oversight, a nonprofit focused on enforcing access to government records, has filed a lawsuit alongside the American Historical Association, arguing that the OLC opinion effectively encourages the president to violate the PRA, an existing federal statute that is fully in force.
Chioma Chukwu, executive director of American Oversight, said in a statement that “the Trump administration is inviting the selective preservation of presidential records, which is inconsistent with the law.”
Citizens for Responsibility and Ethics in Washington (CREW), a government ethics watchdog, has also signaled that it intends to go to court to dispute the OLC opinion.
Jon Maier, CREW’s senior litigation counsel, said the new records policy is “inconsistent” with the PRA. The administration, Maier said, “doesn’t get to pick and choose which parts of the law it wants to follow.”
The OLC opinion came a little more than a year after the Trump administration’s effort to remove and replace the leadership of the National Archives and Records Administration, the federal government’s independent recordkeeping agency.
The National Archives, known for housing many of the country’s founding documents and overseeing presidential libraries, is also responsible for taking custody of records covered by the PRA when a president leaves office. The White House has also not said whether Trump plans to give his presidential records to the Archives once he leaves office.
The National Archives did not respond to multiple requests for comment. But former Archives officials say it is not clear how the agency will operate in response to the OLC opinion.
Gary Stern, who served as general counsel for the National Archives and Records Administration for 26 years before retiring at the end of Joe Biden’s presidency, wrote this month in an op-ed for The Post that the OLC opinion “has opened the door to uncertainty and potential chaos.”
The Archives has typically been seen as nonpolitical, but the agency has been targeted by Trump since its attempt to recover presidential documents from his Florida home after his first term, culminating in a 2022 raid by the FBI. That raid found that Trump had taken classified material upon leaving office.
The national archivist is appointed by the president, but unlike most political appointees, he or she does not typically leave office at the end of a presidential administration. The national archivist at the start of Trump’s second term, Colleen J. Shogan, was nominated by Biden in 2022 and confirmed by the Senate in 2023.
Shortly after Trump was sworn in for a second presidential term in 2025, Shogan was fired at Trump’s direction. In a statement to The Post, Shogan said she “was never given a formal reason for my removal, but it came during a period of significant disagreement over the Presidential Records Act.”
While she did not explicitly charge that her firing was political, she added: “It’s difficult not to consider that context as relevant. The larger issue is what this means for transparency, congressional oversight, and public access to presidential records going forward.”
When asked whether Shogan was dismissed from her role because she would be perceived as resistant to potentially not complying with the PRA, the White House official told The Post, “The President of the United States possesses the authority to remove executive officers.”
Sarah Blaskey contributed to this report.
What readers are saying
The comments express strong criticism of the Trump administration, particularly regarding its handling of presidential records and perceived attempts to cover up wrongdoing. Many commenters are concerned about the Justice Department's role in deeming laws unconstitutional, which... Show more
This summary is AI-generated. AI can make mistakes and this summary is not a replacement for reading the comments.
No comments:
Post a Comment