Does the president own presidential records?

Summary

Podcast Summary: Does the President Own Presidential Records?

NPR Politics Podcast — April 20, 2026
Hosts: Tamara Keith, Carrie Johnson, Domenico Montanaro

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Episode Overview

The episode centers on the Trump administration’s claim that the Presidential Records Act (PRA) is unconstitutional, a stance which attempts to free President Trump from legally mandated preservation of his administration’s records. The hosts explore the origins and function of the PRA, why this challenge matters, and what it reveals about broader constitutional conflicts and American democracy. Experts, legal arguments, and historical context are brought in to illustrate why the control, preservation, and accessibility of presidential records is vital for government transparency and accountability.

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Key Discussion Points and Insights

1. What is the Presidential Records Act (PRA)?

• Origins and Purpose:
  • Passed in 1978, after Watergate and Nixon’s legal battles over his own White House materials.
  • Makes clear that documents created or received by the president or vice president belong to the federal government.
  • Requires transfer of these materials to the National Archives after an administration ends.
  • Quote: “President Jimmy Carter signed it all the way back in 1978. And it makes clear that documents that are created or received by the president or the vice president are actually materials that belong to the government.” (Carrie Johnson, 00:50)

2. Trump Administration’s Stance

• New OLC Opinion:
  • The Justice Department’s Office of Legal Counsel (OLC) issued a memo declaring the PRA unconstitutional, claiming Congress oversteps by limiting presidential power.
  • Quote: “A lawyer in that unit basically says this law is unconstitutional because it's Congress usurping power that should belong to the president.” (Carrie Johnson, 02:24)
  • White House says they are “committed to preserving records” but critics say the system is being circumvented.
• Break with Precedent:
  • Previous presidents largely complied (with lapses) but didn’t challenge the PRA outright.

3. Historical and Legal Context

• Roots in Nixon Era:
  • Nixon’s attempt to take his papers home to California and sell documents prompted original congressional action.
• Supreme Court Precedent:
  • SCOTUS ruled in the past that such laws were constitutional.
  • Quote: “The Supreme Court had actually ruled in a related case involving Richard Nixon that the law was constitutional.” (Carrie Johnson, 03:26)
• Is This Legal?:
  • The administration can issue an opinion, but actual repeal or overturning requires court action.
  • Quote: “It's pretty remarkable that the Trump Justice Department is saying that a law is unconstitutional without there even being a court ruling.” (Domenico Montanaro, 04:23)

4. Historians’ and Experts’ Perspectives

• Why Historians Worry:
  • Potential loss of accountability, inability to reconstruct decisions, threat to democratic transparency.
  • Lawsuit filed by historians to challenge the Justice Department stance.
  • Quote: “If a president is able to destroy some of these materials or take them home with him...we may not learn what was done in our name.” (Carrie Johnson, 06:18)
• Guest voices:
  • Matthew Connolly (Columbia University): “The papers, the records of the decisions they make on our behalf, those are our papers. That's our history.” (02:00)
  • Tim Naftali (Columbia): “I don't know how you hold them accountable if they can destroy the record of their actions in government.” (09:43)
• Historical Research Depends on Archives:
  • We're still learning from past crises, like the Cuban Missile Crisis, due to available records.

5. Transparency Under Trump’s Second Administration

• Transparency Claims vs. Reality:
  • Trump White House not releasing visitor logs, not publishing transcripts, using encrypted apps and personal phones.
  • Quote: “They're not making transcripts available of what the president says...that's often a way of getting around Presidential Records act requirements.” (Tamara Keith, 07:00)
• Impact on Public Trust:
  • The purpose of the PRA was to restore trust after Nixon; this move risks further public skepticism.
  • Quote: “The reason that these things were put in place...was to offer the American people a sense of trust in the presidency because they had lost so much trust in it after Nixon.” (Domenico Montanaro, 08:07)

6. Legal and Constitutional Ramifications

• Presidential Immunity and Checks:
  • Supreme Court’s expanded immunity for presidents, now rivaled by record-keeping exceptions, erodes accountability.
  • Quote: “If a president no longer has to preserve emails, text messages, paper documents, recordings, videos, that removes another check.” (Carrie Johnson, 09:04)
• “Unitary Executive” Theory:
  • Trump argues for maximum Article II powers; some Supreme Court Justices seem receptive.
  • Quote: “Trump wants to be able to put everything under Article 2 and say that the executive is all powerful.” (Domenico Montanaro, 18:05)

7. Recent and Notable Examples

• Mar-a-Lago and Past Controversies:
  • Trump previously indicted for taking records; charges dropped after reelection, but the issue lingers.
  • Historians point to pattern: Clinton emails, Biden classified docs, Sandy Berger sock incident — but only Trump refused wholesale compliance.
  • Quote: “No administration has wholesale declined to comply with this law or declared this law to be unconstitutional...the way Trump has.” (Carrie Johnson, 14:10)
• Impact of OLC Memo:
  • By declaring the law unconstitutional, OLC gives cover for immediate destruction of records until court hears case.

8. Congress’s Role and the Future

• Pre- and Post-Watergate Reforms:
  • Many current transparency/accountability laws are legacies from the 1970s.
  • Trump administration systematically rolling back these reforms.
• What’s Next?
  • Lawsuit by historians pending; Congress’s willingness to intervene is uncertain.
  • The precedent set now will affect the future balance of power.
  • _Quote: "This is a really important fight for the future of this country in the decades to come." (Domenico Montanaro, 19:17)

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Notable Quotes & Memorable Moments

• Matthew Connolly (Columbia historian):

  “The president works for us. The papers, the records of the decisions they make on our behalf, those are our papers. That's our history.” (02:00)

• Gene Hamilton (Trump ally):

  “The notion that the United States Congress gets to tell the President of the United States what he gets to do with his paperwork is, from a constitutional perspective, insane.” (05:22)

• Carrie Johnson:

  “If a president no longer has to preserve emails, text messages, paper documents, recordings, videos, that removes another check.” (09:04)

• Tim Naftali (Nixon Library, Columbia):

  “I don't know how you hold them accountable if they can destroy the record of their actions in government.” (09:43)

• Domenico Montanaro:

  “Three words that really define the checks and balances in this country: separation of powers. And Trump has decided that the all powerful is supposed to be the executive branch.” (19:17)

• Tamara Keith:

  “Yeah, they like to say they're the most transparent administration in history. It's not true.” (07:00)

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Timestamps for Important Segments

• 00:50 | Background on the PRA and its origins (Carrie Johnson)
• 02:00 | Matthew Connolly's comments on who presidential records belong to (Domenico Montanaro)
• 03:26 | DOJ’s legal opinion and challenge to established precedent (Carrie Johnson)
• 05:22 | Gene Hamilton's remarks on PRA constitutionality (Carrie Johnson)
• 06:18 | Why historians care, ongoing lawsuits (Carrie Johnson)
• 07:00 | Tamara Keith on declining White House transparency
• 09:04 | Presidential immunity/erosion of checks (Carrie Johnson)
• 09:43 | Tim Naftali on loss of accountability (Domenico Montanaro)
• 13:23 | Connection to Mar-a-Lago and classified records (Carrie Johnson)
• 14:10 | No prior president has defied the PRA so completely (Carrie Johnson)
• 18:05 | Unitary executive theory and Supreme Court discussion (Domenico Montanaro)
• 19:17 | Stakes and separation of powers (Domenico Montanaro)
• 21:10 | Legal status and court timelines for historian lawsuit (Carrie Johnson)

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Conclusion

This episode underscores the stakes of the Trump administration’s attempt to nullify the Presidential Records Act, touching on history, law, and the future of executive power. The hosts clarify that the battle for records isn’t just about documents — it’s fundamental to democracy, accountability, and public trust. The issue is now before the courts, and the decision will set precedent, shaping presidential power and the public’s access to government history for generations to come.

Transcript

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[Tamara Keith]

Hey there. It's the NPR Politics Podcast. I'm Tamara Keith. I cover politics.

[Carrie Johnson]

I'm Carrie Johnson. I cover the Justice Department in Supreme Court.

[Domenico Montanaro]

And I'm Domenico Montanaro, senior political editor and correspondent.

[Tamara Keith]

And today on the show, the Trump administration says a law designed to preserve presidential records is unconstitutional and therefore President Trump doesn't have to follow it. Kerry, what is this law and what does it say exactly?

[Carrie Johnson]

This law is called the Presidential Records Act. President Jimmy Carter signed it all the way back in 1978. And it makes clear that documents that are created or received by the president or the vice president are actually materials that belong to the government. The law also allows for or requires a transfer of those materials when the administration ends to the National Archives. And this all came about because of a whole bunch of fighting during the Richard Nixon era. Remember, Nixon fought all the way to the Supreme Court in effort by special prosecutors to get the tapes that he made, the recordings he made in the White House. And then after he left, after he resigned, he wanted to take all his materials home to California with him. And there was a whole bunch of back and forth. Ultimately, Congress passed a law that concerned Nixon's materials. And then a few years later, they made this the law for all future presidents. And Tam, everybody has followed that more or less until this month when the Trump Justice Department declared that law unconstitutional. Matthew Connolly is a history professor at Columbia University.

[Tamara Keith]

He here's what he had to say in America.

[Domenico Montanaro]

I think most of us have now come to understand, you know, that the president works for us. Right. The papers, the records of the decisions they make on our behalf, those are our papers. That's our history.

[Tamara Keith]

Kerry, the Justice Department is saying this law is unconstitutional. Why is the administration saying that they don't have to follow it, but all the other presidents did?

[Carrie Johnson]

Yeah, the administration's relying on a new legal opinion from the head of the Office of Legal Counsel inside the Justice Department. And that office basically advises the entire executive branch about the state of the law. And a lawyer in that unit basically says this law is unconstitutional because it's Congress usurping power that should belong to the president. This strong article to authority the Constitution gives the president of the United States. And Abigail Jackson, a White House spokeswoman, said President Trump is committed to preserving records of his administration. She says he's going to maintain a rigorous document retention program. She also says the administration's gonna do some training. The problem is that training may not apply to the President Donald Trump, OR Vice President J.D. vance. And that's why historians are so worried about this that they've filed a lawsuit in federal court over it.

[Tamara Keith]

But can the administration just decide something is unconstitutional, or is there a process there?

[Carrie Johnson]

Well, historically, a lawyer inside the Justice Department who might want to do this analysis would look into the history of the question and would look at precedent and materials and documents over time. And, in fact, the historian's lawsuit says that since 1978, presidents have basically followed this with some lapses and problems, but basically followed this law. One scholar said that this new legal opinion from the Justice Department kind of came like a bolt of lightning because there hadn't been any real scholarship on this in recent years, and the Supreme Court had actually ruled in a related case involving Richard Nixon that the law was constitutional. So the idea that this DOJ would just kind of strike it down with the power of a single memo is a pretty astonishing thing to happen.

[Domenico Montanaro]

I was gonna say it's pretty remarkable that the Trump Justice Department is saying that a law is unconstitutional without there even being a court rul. This isn't a ruling on something with ambiguity and in need of some degree of clarity, which is kind of what the Office of Legal Counsel tends to do with other things where it's not so clear. Right. There's a lot more gray area. And they say, here's the advice on whether or not you need to follow this or how to follow it or how to follow the law while doing the thing that you think you should be able to do. But this is not that. This is them just essentially saying on high, this is unconstitutional. Don't worry about it. You don't need to do it.

[Carrie Johnson]

And, you know, I talked to one of the president's allies about this, a guy named Gene Hamilton, who worked in the White House last year and worked in the Justice Department during the first Trump administration. Here's what he had to say. The notion that the United States Congress

[Domenico Montanaro]

gets to tell the President of the United States what he gets to do

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with his paperwork is, from a constitutional perspective, insane.

[Carrie Johnson]

Now, Gene Hamilton told me that from the founding of the country, like the first president, George Washington took his papers home with him, and later on, his heirs sold some of the documents for what turned out to be a lot of money and presidential papers back in that era were considered to be property of the president. Problem is, all of that started to change around the time of Richard Nixon, and now Trump seems to want to take us back to that era.

[Tamara Keith]

And there are presidential libraries where these records go, where people can do research on the history or what happened or things that those of us on the outside didn't realize were happening at the time. Researchers then go into the archives and find answers to questions about what happened in our history.

[Carrie Johnson]

We're still learning things, historians told me as part of this reporting about the Cuban Missile Crisis, which took place in 1962. We're still learning some things about the war in Vietnam went on for so many years. And so the concern from the American Historical association and some other people who are interested in getting answers is that if a president is able to destroy some of these materials or take them home with him, for instance, we may not learn what was done in our name. Tam, I'm curious about what your experience has been with this White House this year and last year since Trump came back into power, with respect to access.

[Tamara Keith]

Yeah, they like to say they're the most transparent administration in history. It's not true. And just one very tangible example of that is this White House is not releasing the visitor logs. The visitor logs help journalists and others know who is coming into the White House, who is on the White House grounds, who is meeting with the president. And we're not getting that. They're not posting it. Other administrations have posted it on a delay, but they're just not even doing it. They also are not making available transcripts, government transcripts that we, the taxpayers, are paying for. They're not making transcripts available of what the president says. And another thing that stands out to me is administration officials are very quick to jump to an encrypted messaging app to send messages with the press and others or, you know, will use their personal cell phones instead of their government cell phones to communicate. Well, that is often a way of getting around Presidential Records act requirements.

[Domenico Montanaro]

And the fact is, the reason that these things were put in place in the first place was to offer the American people a sense of trust in the presidency because they had lost so much trust in it after Nixon. And being able to say, hey, we're open, we're transparent. Here's all the things that are happening. You can trust us. You can go back and what was happening within the administration, as long as something wasn't classified, and that was supposed to be able to restore some trust in the executive branch, which had been lost during Nixon and during Vietnam, frankly. And the Trump administration has basically said, we're going to take on the media and undermine the free press and say we're going to control this narrative. We don't believe all these things that the press is telling you are the things that are supposed to be and have been for a long time. My people will believe me, and we don't need them to believe you.

[Carrie Johnson]

You know, not so long ago, the Supreme Court made clear that Trump and future presidents enjoy near absolute immunity from prosecution for their actions, official actions in office, and that, to some people, removed a check on the president. Well, historians are telling me that if a president no longer has to preserve emails, text messages, paper documents, recordings, videos, that removes another check. And here's what Tim Naftali had to say. He was actually the director of the Nixon Library. He's now a scholar and historian at Columbia.

[Domenico Montanaro]

This is about whether we can hold our most powerful leader accountable. And I don't know how you hold them accountable if they can destroy the record of their actions in government. You know, if you think about what else this could mean just in practice, right. The Iran war is happening. If you don't have the opportunity, even decades from now, to go back and see, you know, whether or not this administration was being judicious in whether or not they're gonna put people's lives in jeopardy, were they doing this, you know, with a lot of thought that went into it? What were those that thinking that was going into it, depending on how the Iran war winds up, even if it winds up, quote, unquote, well, or a positive for the administration, well, what's the roadmap to doing that same way for a future president. And the opposite here, obviously, if it doesn't go well and people have died during this conflict, what are the things to avoid in the future for a future president? These are the things that the president maybe right now doesn't think is important to a democracy. But in a democracy, maintaining those kinds of records has proven to be important.

[Tamara Keith]

I mean, having access, ultimately, when the records come out, having access to those deliberative materials allows the American people, allows historians to learn lessons from history. And if you can't learn lessons from history, then you are destined to repeat it. That's the cliche, but it's true.

[Domenico Montanaro]

Yeah. I mean, the presidents undermined the free press, want that narrative to be control, to be put out there. And now what they're doing is saying even the primary documents that maybe would present a stronger case so you don't have to believe your lying eyes as they say. They're saying you can't even see those.

[Tamara Keith]

All right. We're going to take a quick break and we'll have more in a moment.

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[Tamara Keith]

And we're back, Kerry. We heard a lot about the Presidential Records act after President Trump left office the first time, he took a bunch of documents, some classified, with him to Mar a Lago, then he refused to return them. He was ultimately indicted for obstruction of justice and violating the Espionage act, but the charges were dropped after he won reelection. Does this latest move by the Trump Justice Department have anything to do with that history?

[Carrie Johnson]

Well, in that Justice Department memo from earlier this month, it's referred to only very briefly to point out that a president actually got charged with a crime for taking these materials. But it's not a direct relationship. That being said, we've heard this president talk so often about the idea that he was charged with a crime was a very wrong thing. Remember, the Justice Department dropped the appeal after Trump 1 reelection in 2024, but it's still very much on his mind. And historian Tim Naftali thinks there is a relationship. Here's what he told me.

[Domenico Montanaro]

His attack on the Presidential Records act is an attempt at post facto vindication for having taken public property to Mar a Lago.

[Carrie Johnson]

So there's that. And I should point out that the historians I interviewed for this story have talked about other presidents and other administrations having lapses in the past. Of course, Hillary Clinton, when she was Secretary of State, used a private email server, which was no good. President Biden was subject to investigation for having classified materials in his home in Delaware. And then way back in the day, Sandy Berger, who was an official in the Clinton administration, was investigated for taking physical papers from the archives and, and like, hiding them in his socks. So there's all of that. That being said, no administration has wholesale declined to comply with this law or declared this law to be unconstitutional or declined to comply with it the way Trump has.

[Tamara Keith]

And I'm also remembering President Reagan wanting to keep his notes and there was a fight about that. So there wasn't like a question of whether this was supposed to be a law you followed or not, because he was told he had to follow it.

[Carrie Johnson]

Well, you know what, it's interesting. Everybody seems to agree that the president can keep a diary, and that's his own business. So nobody here is asking for access to a presidential diary. What they're asking for is compliance with the Presidential Records act, which is official materials that are sent to the president or vice president or created by them. Diaries are personal. And that's a separate category.

[Domenico Montanaro]

Yeah, I mean, and this is a president who is, you know, not really showed a lot of deference or respect toward the archives folks. I mean, you know, he called the National Archives and Records Administration, people who worked there, essentially radical and woke several times. And, you know, it really shows that he doesn't think that this is something that he thinks a president should have to do. Certainly he doesn't think he should have to do it. And there have been problems and issues with past presidents and people who've worked in White House or executive branch in the past, as we've talked about. But I think the real issue here is did they to comply in a good faith effort after they may have been told, hey, we're missing this document, are you going to give it back? That's something that Jack Smith, who was the special counsel who had been appointed to look into the records issue in the first place with Trump, is essentially saying that Trump didn't comply. And if they had complied, they had asked for them to give that stuff back. If Trump had given that stuff back, nobody would probably have had a issue with him and all of that. But he wanted that fight in some respects, because he didn't want to have to follow the rules.

[Tamara Keith]

Yeah. And that indictment included pictures of boxes of records in a bathroom at Mar a Lago. I think Trump viewed it as an invasion of privacy. It was also just a stunning thing

[Carrie Johnson]

to see a bathroom, a ballroom, an office, and something that prosecutors at the time pointed out was available to all kind of people tromping around that resort. Not just Trump and his family, but a very heavily trafficked area in the resort.

[Tamara Keith]

Right. Well, as we noted at the beginning, the Presidential Records act has its origins going back to the post Watergate era. But this isn't the only reform from that time period that Trump has pushed back on. I did a story about this. Last year, he fired inspectors general and other internal government watchdogs. He's run roughshod over the Budget control Act of 1974. It truly seems like every time this White House blows past a law claiming its Article 2 powers, you look it up and it's like, oh, that law originated in the 1970s and the era of government reform that came as a backlash to Nixon's presidency. Is this a coincidence?

[Domenico Montanaro]

No. I mean, Trump wants to be able to put everything under Article 2 and say that the executive is all powerful. And there are some Supreme Court justices who believe in this idea of a unitary executive and are willing to give him as many powers as potentially possible. People like Brett Kavanaugh, for example, was well known for that before he even came onto the Supreme Court bench. But the fact is, you said two words there that are important. That law. It's a law. Right. And until otherwise, you're supposed to follow it. Yeah.

[Carrie Johnson]

Let me just say that we beat up on Congress a lot for not doing enough and not fulfilling its role as an independent branch of government. But in this particular case, Congress did something back in 1978, and Trump just seems to want to ignore it. And so the question is whether members of Congress are going to step up as a part of this lawsuit, maybe file a friend of the court brief, maybe ask some questions about it the next time the acting attorney general shows up for an oversight hearing. But the system worked the way it's supposed to here. It's just that Trump seems to want to rewrite the rules.

[Domenico Montanaro]

You know, there's three words that really define the checks and balances in this country. And separation of powers. And Trump has decided that the all powerful is supposed to be the executive branch. And this is a really important fight for the future of this country in the decades to come. Because Trump is supposed to be out of the White House in 2029, he's not allowed to run for president again. And however this sort of shakes out is really going to define or at least be a precedent for what other presidents decide to do and what they are going to follow.

[Tamara Keith]

Yeah. I mean, there used to be a time where it seemed like maybe Congress would try to reassert itself, like Congress did after Watergate, where people were elected to make change, to rein in the imperial presidency, and they did. And there's a question of this time, where there's very clearly another imperial presidency, whether anyone is going to demand that that be reined in again.

[Carrie Johnson]

Well, we'll see what happens after the midterms. It's super hard to imagine anybody doing anything on the Republican side of the aisle on any of these bucket issues until next year. Right?

[Domenico Montanaro]

Yeah. And I think a lot of the Republicans in Congress, you know, do think that some of these good government laws are squishy and maybe shouldn't exist anymore. But, you know, again, these are all things you can have debates on. Right. You know, there is a process, obviously, for how a bill becomes a law, but we're not even at the point of having a debate before that bill would even be introduced or anything like that. And it doesn't appear that this president really is all that interested in this. I mean, there is a pattern for this president to want to try to consolidate power within the administration and not have to follow the rules that the past people have done or the norms that the past presidents have followed. So, you know, this is all sort of seemingly in line with that.

[Carrie Johnson]

And let me tell you this. This court dispute, the case that was filed by the historians, it's not due for a court hearing until early next month. And so until that happens, these historians are worried about what's going on inside the White House now with these records and papers. And because the Office of Legal Counsel basically gives advice to the whole executive branch, anyone who may want to get rid of records between now and that court hearing basically would have a defense if they're ever charged with a crime for destroying records, because they were relying on what the Justice Department had to say. So it may just be a piece of paper by the Justice Department, but it's also our history, and it's also, you know, a get out of jail free card for anybody who wants to destroy materials in the White House right now.

[Tamara Keith]

All right, I think we're just going

[Carrie Johnson]

to leave it there for today.

[Tamara Keith]

I'm Tamara Keith.

[Carrie Johnson]

I cover politics I'm Carrie Johnson. I cover the Justice Department in the Supreme Court.

[Domenico Montanaro]

And I'm Domenico Montanaro, senior political editor and correspondent.

[Tamara Keith]

And thank you for listening to the NPR Politics Podcast.

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[Carrie Johnson]

So do we on NPR News now, the podcast that brings the latest headlines in five minutes with new episodes posted at the top of every hour, Clear, fact based and ready when you are. Listen to NPR News now on the NPR app or wherever you get your podcasts.