The Office of Legal Counsel recently declared that the Presidential Records Act (PRA) “is unconstitutional, and the President need not further comply with its dictates.” 50 Op. OLC __, slip op. at 52 (Apr. 1, 2026). There was a time that when such a declaration would have generated major pushback in Congress. When in 2002 President Bush issued an executive order changing the executive branch’s interpretation and application of the PRA in comparatively minor ways, there was bipartisan criticism that these changes violated the spirit and letter of the act. Multiple hearings were held and bipartisan legislation introduced to reverse the executive order, which was ultimately rescinded by President Obama.
By contrast, there has been a fairly muted congressional reaction to the OLC opinion and, as far as I can tell (with the assistance of ChatGPT), complete silence from congressional Republicans. There are several possible reasons for this, but I suspect the most significant is learned helplessness. No one believes that the OLC opinion has anything to do with legal analysis or that there is any point to attempting to have a rational debate about it. Given the daily occurrence of more politically salient scandals, even congressional Democrats have little incentive to spend time on this issue.
In brief, OLC’s argument was that there was no enumerated Article I legislative power that allows Congress to regulate presidential records. This is an astonishing claim that no one had ever made before. OLC notably does not cite any judicial precedent, legal scholarship or even an executive branch opinion which reaches such a conclusion. Notably, when former President Nixon challenged the constitutionality of the Presidential Recordings and Materials Preservation Act (PRMPA), a predecessor statute to the PRA which applied solely to presidential records of the Nixon administration, he made no claim that it was beyond Congress’s enumerated powers. Instead, he argued (among other things) that by asserting public ownership and control of presidential records, PRMPA violated the separation of powers and infringed on executive privilege. These arguments were rejected by the Supreme Court. See Nixon v. Administrator of General Services (“Nixon v. GSA”), 433 U.S. 425 (1977).
OLC’s objections to the PRA are substantially similar to Nixon’s objections to PRMPA, which presents a problem because OLC opinions cannot overrule Supreme Court decisions (at least not yet). OLC attempts to get around this by recasting those objections as relevant to the enumerated powers “issue” (which it made up) and then arguing that the Supreme Court did not decide that issue in Nixon v. GSA. This is a sleight of hand that will not fool anybody who does not want to be fooled.
OLC’s next move is to focus its enumerated powers analysis on the question whether the PRA can be justified as an exercise of Congress’s oversight power. This is odd because Congress’s oversight power is not an enumerated power, and OLC cursorily dismisses or ignores altogether actual enumerated powers that provide fairly obvious grounds for enactment of the PRA. But as Professor Jonathan Shaub observes, focusing on the largely irrelevant issue of the scope of Congress’s authority to obtain executive branch records allows OLC to rely on a “treasure trove” of internal opinions and arguments that it has employed over decades to restrict congressional oversight.
Chief among these is a list of historical instances (or, in Shaub’s phrase, “tired examples”) in which presidents have refused congressional demands for executive branch records. This list was initially developed by executive branch lawyers in the 1940s and 1950s to support the proposition that the sitting president enjoyed total and unreviewable control over executive branch information. It was later employed in the 1980s to support a broad interpretation of the doctrine of executive privilege recognized in United States v. Nixon, 418 U.S. 683 (1974). And executive branch lawyers repurposed it again following Raines v. Byrd, 521 U.S. 811 (1997) to argue against congressional standing to enforce subpoenas. For OLC and its ilk, this list truly is a floor wax and a dessert topping.
However, even if this list were relevant to the PRA issue, it would not support OLC’s claim that presidents have some illimitable constitutional right to maintain ownership or control of their own presidential records. This is because the historical examples on the list are not limited to presidential records but include department and agency records as well. For example, the first and most significant episode on the list, the House’s 1792 investigation of General St. Clair’s failed military expedition, overwhelmingly (and probably exclusively) involved the latter type of records. The House committee initially requested records from the secretary of war and the records it sought (and ultimately received) were War and Treasury Department records, such as military returns and strength reports, supply and procurement records, financial and expenditure documentation, operational orders and planning documents, and the official correspondence of St. Clair, Secretary of State Henry Knox, quartermasters and other military officers.
President Washington’s cabinet agreed that the House had the right to request records in the course of investigating the St. Clair expedition, but it maintained that the president, not the secretary of war or other department officers, was the appropriate gatekeeper of the records and that he could (though he did not in this instance) withhold documents if the public interest so required. This had nothing to do with the requested documents being “presidential” in nature (which they were not), nor did it involve any claim of presidential ownership of the documents in question.
The same is true of subsequent executive refusals to provide documents to Congress, with one arguable exception. In 1886 President Cleveland sent a message responding to the Senate’s demand to the attorney general for documents relating to Cleveland’s decision to remove certain U.S. attorneys from office. Cleveland directed the attorney general not to comply on the ground that the papers related to a matter (removal of executive officers) committed by the Constitution to his sole discretion and for which he was not accountable to the Senate. He explained:
Against the transmission of such papers and documents I have interposed my advice and direction. This has not been done, as is suggested in the committee’s report, upon the assumption on my part that the Attorney-General or any other head of a Department “is the servant of the President, and is to give or withhold copies of documents in his office according to the will of the Executive and not otherwise,” but because I regard the papers and documents withheld and addressed to me or intended for my use and action purely unofficial and private, not infrequently confidential, and having reference to the performance of a duty exclusively mine. I consider them in no proper sense as upon the files of the Department, but as deposited there for my convenience, remaining still completely under my control. I suppose if I desired to take them into my custody I might do so with entire propriety, and if I saw fit to destroy them no one could complain.
8 Messages and Papers of the Presidents 375 (emphasis added). Here Cleveland differentiates between ordinary department records and those which relate to a constitutional responsibility of the president. He suggests that he enjoys constructive possession and control over the latter type of documents that he lacks as to the former. In this sense his position was arguably narrower than the traditional executive branch position first articulated in the St. Clair investigation. However, he was not basing his position on his personal ownership of the records, and as far as I know neither Cleveland nor any other president attempted to claim personal ownership of documents maintained by departments or agencies, regardless of subject matter.
Although OLC is mistaken in equating the traditional executive branch response to congressional demands for documents to a claim of presidential ownership, it is correct in suggesting that it is based on a “principle of presidential control.” See 50 Op. OLC __, slip op. at 5. It thus acknowledges, perhaps inadvertently, the central role that possession of physical documents played in the executive branch theory. The executive branch position was, in essence, that (1) the sitting president enjoys constructive possession and control over executive branch records; (2) when faced with a congressional demand for such records, the president therefore has the power to make the final decision of whether to comply; (3) because Congress has no power of compulsion with respect to the president, the president’s decision cannot be challenged directly; and (4) Congress’s only remedy in such a situation is impeachment. This is not a claim of presidential ownership, nor is it a claim of “privilege” attaching to particular types of information. It also says nothing about former presidents, or about documents that are outside the control of the sitting president, or about the oral testimony of anyone other than the sitting president.
Perhaps tellingly, OLC does not mention the historical example which comes closest to bearing on the legal status of presidential records. In 1846, the House by resolution requested that President Polk provide it with documents relating to presidential certificates of expenditures in the Tyler administration for matters of foreign relations, particularly the northeast boundary dispute with Great Britain. These certificates had been issued pursuant to a law which authorized the president to determine that certain contingent expenses relating to foreign relations should be kept confidential and to provide a certificate which permitted the needed sums to be drawn from the treasury without detail as to the amount paid to each payee and the reasons therefor.
Polk responded declined to provide the requested documents:
An important question arises, whether a subsequent President, either voluntarily or at the request of one branch of Congress, can without a violation of the spirit of the law revise the acts of his predecessor and expose to public view that which he had determined should not be “made public.” If not a matter of strict duty, it would certainly be a safe general rule that this should not be done. Indeed, it may well happen, and probably would happen, that the President for the time being would not be in possession of the information upon which his predecessor acted, and could not, therefore, have the means of judging whether he had exercised his discretion wisely or not. The law requires no other voucher but the President’s certificate, and there is nothing in its provisions which requires any “entries, receipts, letters, vouchers, memorandums, or other evidence of such payments” to be preserved in the executive department. The President who makes the “certificate” may, if he chooses, keep all the information and evidence upon which he acts in his own possession. If, for the information of his successors, he shall leave the evidence on which he acts and the items of the expenditures which make up the sum for which he has given his “certificate” on the confidential files of one of the Executive Departments, they do not in any proper sense become thereby public records.
(emphasis added).
When Polk says the president who issues the certificate may choose to “keep the evidence upon which he acts in his own possession,” he presumably means that the president may choose to keep the information in his own mind, to destroy any written documentation (or never create it in the first place) or, presumably, to treat it as his personal property when he leaves office. However, he does not suggest that the former president owns any such records which he leaves behind, nor that the former president has any say in the sitting president’s response to a congressional request. Instead, he concludes that the “safe general rule” is to decline to comply with such a request on the ground that it is not in the public interest or in accordance with the spirit of the law to make the information public.
Furthermore, nothing in Polk’s response suggests that the former president himself, or any documents he has chosen to take with him, are beyond the reach of Congress’s power of inquiry. Indeed, former President Tyler was subpoenaed in this House investigation, as was former President John Quincy Adams, and both former presidents cooperated with the investigation and provided the information requested. As I have noted before, this episode indicates that “former presidents were considered to be private citizens, rather than a separate class of nobility.”
Finally, Polk makes a point of reaffirming Congress’s legislative power to address the situation. Congress is always free, he explains, to change the law allowing for confidentiality in the payment of these expenses. Thus, it is within Congress’s legislative power to ensure the documents it seeks are public records.
In short, OLC’s list of historical examples does little to advance its case, even if the constitutionality of the PRA depended on the congressional power of inquiry. Again, however, there is no need to consider the implied congressional power of inquiry at all. As Judge John Bates of the U.S. District Court of the District of Columbia (and an original member of the Point of Order cast) ruled on May 20, the PRA can be justified by at least two enumerated powers, “Congress’s authority to regulate federal property under the Property Clause and its power to structure the operations of the federal government and promote the integrity of the Executive Branch under the Necessary and Proper Clause.” American Historical Ass’n v. Trump, Civ. Action No. 26-1169 & 26-1402, slip op. at 27 (D.D.C. May 20, 2026). The court noted that neither of these powers was discussed by the OLC opinion. Id.
As Professor Shaub (a former OLC attorney) notes, “[w]hatever one thinks about OLC or executive branch lawyering more generally [note: you know my views on that], this opinion stands out for its absurdity.” He elaborates: “The sloppiness of the research, omissions of centrally important issues, and hyperfocus on a largely irrelevant argument suggest that the opinion was done in haste, upon request of the White House and in support of a conclusion dictated by the White House, without the need for serious legal analysis to determine the answer.” Other OLC veterans have expressed similar criticisms.
It makes one wonder why Congress should be funding OLC at all. Couldn’t the money be used for something more important, like a White House ballroom, or a new Arch de Trump, or a slush fund for deserving January 6 rioters?