The White House has swiftly adopted a new records-preservation policy after the Justice Department declared a longstanding federal law governing presidential records unconstitutional, triggering alarm among legal experts and watchdog groups.
The Justice Department’s Office of Legal Counsel said in an April 1 memorandum that the Presidential Records Act of 1978 exceeds Congress’s authority and intrudes on the executive branch, concluding the law is unconstitutional.
Within days of that determination, White House staff were directed to follow updated internal guidance that reflects the administration’s new legal position, replacing firm requirements with more flexible recommendations, according to officials familiar with the changes who spoke with The Washington Post.
White House Counsel David Alan Warrington wrote in a memo to staff that the Presidential Records Act was “a significant departure from historical practice.”
The Presidential Records Act was enacted in the aftermath of the Watergate scandal to ensure presidential materials are preserved as public property rather than treated as personal records.
The law requires presidents and their aides to maintain records documenting official duties and mandates that those materials be transferred to the National Archives at the end of an administration.
The new White House policy, however, shifts key provisions from mandatory rules to discretionary guidance, including changes to how staff handle emails, messaging platforms and personal devices.
A White House official, speaking on background, said “it is impossible to view the memo and the mandatory training as anything but a requirement that staff preserve records.”
Critics say the revised approach weakens long-standing safeguards designed to ensure transparency and accountability in presidential decision-making.
Jason R. Baron, a University of Maryland professor and former director of litigation at the National Archives, said the policy “seriously undermines government accountability in making recordkeeping at the White House largely discretionary rather than mandatory.”
Baron added that nothing in the guidance “prevents the White House from directing the transfer or destruction of White House records, including tens of millions of e-mails.”
The updated policy softens earlier directives issued in prior administrations, including guidance that had required staff to use official government email accounts except in emergencies.
Under the revised framework, staff are told they “should” use official systems and “should” avoid personal devices “whenever possible,” language that legal experts say introduces ambiguity into compliance expectations.
Patrick Eddington, a senior fellow at the Cato Institute, warned that encouraging summaries in place of preserving original communications “is a great way to rewrite history.”
The Justice Department’s opinion has already sparked legal challenges from watchdog organizations and historians, who argue the executive branch cannot unilaterally disregard a statute enacted by Congress.
American Oversight and the American Historical Association filed a lawsuit in federal court seeking to block the administration from acting on the memo and to uphold the Presidential Records Act.
Chioma Chukwu of American Oversight said the administration is “inviting the selective preservation of presidential records, which is inconsistent with the law.”
The dispute underscores a broader constitutional clash over separation of powers, with the Justice Department asserting that Congress cannot regulate presidential recordkeeping, while critics argue the law is essential to preserving the historical record and ensuring public access to the actions of the nation’s highest office.
Theodore Bunker ✉
Theodore Bunker, a Newsmax writer, has more than a decade covering news, media, and politics.
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