The NPR Politics Podcast - Does the president own presidential records?

Episode Date: April 20, 2026

The Justice Department has declared that the Presidential Records Act is unconstitutional and therefore, President Trump is allowed to destroy any records from his time in office. We discuss how the move could make it harder to hold presidents accountable.This episode: senior political correspondent Tamara Keith, Supreme Court and justice correspondent Carrie Johnson, and senior political editor and correspondent Domenico Montanaro.This podcast was produced by Casey Morell and Bria Suggs, and edited by Rachel Baye.Our executive producer is Muthoni Muturi.Listen to every episode of the NPR Politics Podcast sponsor-free, unlock access to bonus episodes with more from the NPR Politics team, and support public media when you sign up for The NPR Politics Podcast+ at plus.npr.org/politics.See pcm.adswizz.com for information about our collection and use of personal data for sponsorship and to manage your podcast sponsorship preferences.NPR Privacy Policy

Hey there, it's the NPR Politics Podcast. I'm Tamara Keith. I cover politics. I'm Carrie Johnson. I cover the Justice Department in Supreme Court. And I'm Domenico Montanaro, senior political editor and correspondent. 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. Carrie, what is this law and what does it say exactly? 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, 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 the Supreme Court an 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. Here's what he had to say. In America, 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. Carrie, 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. 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 going to 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. But can the administration just decide something is unconstitutional, or is there a process there? 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 man. memo is a pretty astonishing thing to happen. I was going to say it's pretty remarkable that the Trump Justice Department is saying that a law is unconstitutional without there even being a court ruling.

You know, this isn't a ruling on something with ambiguity, you know, 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 of 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, you know, 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. And, you know, I talked to one of the president's allies about this, a guy named Gene Hamilton, who worked in the, 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 gets to tell the president of the United States what he gets to do with his paperwork is, is from a constitutional perspective, insane. 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. 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. 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 that 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. Yeah. So 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.

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 find out what was happening within the administration as long 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. 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. 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.

not they're going to 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 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, you know, 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. 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, that's the cliche, but it's true. Yeah. I mean, the president's undermined the free press, want that narrative to be controlled, 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 lion eyes, as they say, they're saying you can't even see those. All right. We're going to take a quick break and we'll have more in a moment. And we're back. Carrie, 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 Mara 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 re-election. Does this latest move by the Trump Justice Department have anything to do with that history? 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 won re-election in 2024.

But it's still very much on his mind. And historian, Tim Noftali thinks there is a relationship. Here's what he told me. His attack on the Presidential Records Act is an attempt at post facto vindication for having taken public property to Mara Lago. 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, 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. 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. 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. It's, it's, diaries are personal and that's a separate category. Yeah, I mean, and this is a president who has, you know, not really showed a lot of deference or respect toward the, archives folks. I mean, you know, he's called the National Archives and Records Administration, people who work 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 try to comply, you know, 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, it's essentially saying that like, you know, 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 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. Yeah. And that indictment included pictures of boxes of records in a bathroom at Mara Lago.

I think Trump viewed it as an invasion of privacy. It was also just a stunning thing 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. 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? 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 on to 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, let me just say that, you know, 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? 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 and 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, you know, are going to follow. 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 rained in again. Well, we'll see what happens after in 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? 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 you 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. 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, get out of jail free card for anybody who wants to destroy materials in the White House right now. All right, I think we're just going to leave

it there for today. I'm Tamara Keith. I cover politics. I'm Carrie Johnson. I cover the Justice Department in the Supreme Court. And I'm Domenico Montanaro, senior political editor and correspondent. And thank you for listening to the NPR Politics Podcast.