What Does OLC’s Opinion on the Presidential Records Act Mean for Classified Presidential Records?

The President is entrusted with temporary custody of the office to protect national security, and the notion that he “owns” information vital to the nation’s security is absurd.

For nearly 50 years, the official records of Presidents and Vice Presidents have been legally owned by the public and managed by the National Archives and Records Administration (NARA).

The Department of Justice’s Office of Legal Counsel (OLC) recently issued an opinion finding that the law governing the ownership of these materials, the Presidential Records Act (PRA), is unconstitutional. Presidential records, the opinion asserts, may be treated as the private property of an outgoing president, purportedly a return to historical practice.

This opinion, however, does not expressly address one of its more significant potential consequences: what would happen to classified presidential records at the White House?

This issue is of particular interest to us because we were the Department of Justice attorneys who argued on behalf of the government, in a case called Armstrong v. Executive Office of the President, that the records of the National Security Council (NSC) were presidential records subject to the PRA and not to the recordkeeping and disclosure requirements of the Federal Records Act (FRA) and Freedom of Information Act (FOIA).

Based on an extensive historical record, we showed that NSC functioned inside the Executive Office of the President solely to advise and assist the President. The President is the statutory chair of the NSC, and NSC staff served over many decades as the President’s personal staff inside the White House overseen by the National Security Advisor. The U.S. Court of Appeals for the District of Columbia Circuit agreed that NSC was solely a presidential entity. See 90 F.3d 553 (D.C. Cir. 1996), cert. denied, 520 U.S. 1239 (1997).

As a practical matter, the decision in that case had a limited impact. It meant simply that all NSC records would be governed by the PRA and preserved by NARA at the conclusion of an administration. NARA’s archival staff, all government employees, continued processing any requests for disclosure, subject to the timetable and terms of the PRA.

If OLC’s recent opinion stands, however, the PRA would no longer apply to any classified presidential records, which extends well beyond NSC files but also to other senior White House staff and military offices in the Executive Office of the President.

The question naturally arises as to how classified White House files would be treated going forward. OLC’s 52-page analysis doesn’t grapple with the issue directly but leaves a potential clue. At page 26 of the opinion, in lamenting the past acquiescence of the Executive Branch to the PRA, OLC observes that “[t]his shift has already gone so far that attempts have been made to subject a former President to criminal liability for his handling of presidential records that, for most of this Nation’s history, would have been subject to his complete discretion” See, e.g. United States v. Trump, 739 F. Supp. 3d 1131, 1137 (S.D. Fla 2024).” OLC Opp. at 26 (emphasis added).

That citation refers to the case in which then-former President Trump was indicted for taking classified materials from the White House to his Mar-a-Lago home in Florida after his term in office. OLC does not explicitly connect the dots, but the opinion implies that the files President Trump took to Mar-a-Lago are the kind of presidential records that historically were – and would now again be, under their opinion – subject to a former president’s “complete discretion.”

This is the wrong outcome as a matter of law and policy.

White House classified files contain the “crown jewels” of the U.S. national security and foreign policy establishment, consisting of not only presidential diplomatic communications and deliberations, but extraordinarily sensitive information including military plans, intelligence sources and methods, foreign government information, and even nuclear weapons information.

It is inconceivable that any of these materials would be treated as mere private property of an outgoing president subject to his “complete discretion.” Yet that is what the OLC opinion appears to contemplate, and, indeed, may intentionally seek to permit.

Assuming the OLC opinion does in fact encompass presidential classified files, below are some ways to potentially alleviate these concerns. But they largely depend on the good faith cooperation of an outgoing president.

Presidential Deeds of Trust

First, it is possible OLC contemplates a return to the recent historical practice of outgoing presidents deeding their presidential materials to the government for storage and processing at presidential libraries run by NARA. OLC is correct that, prior to the PRA, presidential records were considered the private property of former Presidents (with the exception of Richard Nixon, whose materials were subject to a separate statute as OLC explains). OLC also outlines instances in which Congress obtained presidential papers through political negotiation and inter-branch accommodation, rather than as a matter of right.

But the history of private ownership of presidential records presents more complexities than OLC lets on. The practice began after the presidency of George Washington and was continued by subsequent presidents who served well before the modern national security state and its mass of classified information. In the 20^th century – marked by two World Wars, the introduction of nuclear weapons, and two other major wars in Korea and Vietnam – outgoing presidents recognized that their national security and foreign policy materials should be retained by the U.S. government. The archives at pre-PRA presidential libraries for Presidents Hoover, Roosevelt, Truman, Eisenhower, Kennedy, Johnson, Ford and Carter are run by NARA pursuant to deeds of trust under which the government preserves, controls, and processes presidential materials, including national security files.

There are obvious problems with OLC simply relying on this prior practice. For starters, it turns entirely on the discretion of outgoing presidents.

The system worked only because the pre-PRA presidents listed above had the good judgment to see that their presidential materials, and in particular national security records, should remain in control of the government to assist their successors as needed and then be preserved in a government archive. Relying on that practice, if it ever made sense, is by now woefully out of date, at least as it pertains to classified materials. The idea that an outgoing president has the discretion to decide whether to “donate” back to the government its own national security secrets is, at best, a complete fiction. The President is entrusted with temporary custody of the office to protect national security, and the notion that he “owns” information vital to the nation’s security is absurd.

Technology has also rendered historical practices obsolete.

In the pre-PRA era, the number of classified records in hard copy at NARA was modest. But since the onset of the electronic records era starting with the Reagan presidential records, there have been millions of classified NSC and White House records generated and transmitted to NARA for safekeeping and processing.

The sheer volume of these sensitive materials, along with security and technological requirements for storing and processing them, renders leaving them to the discretion of a private citizen impossible. Yet absent the PRA, there would be no governing structure in place for these materials.

The Classification System and Criminal Law

Perhaps another restraint on classified presidential records leaving the government’s control is the system of safeguards and laws for protecting classified information that are independent of the PRA.

For example, the Supreme Court has long recognized that the President has the constitutional discretion to control classified national security information. The President has done so through the issuance of Executive orders that define what information is classified, who may be granted access, and how it must be stored. In addition, Title 18 of the U.S. Code, Section 793(e), imposes criminal sanctions on anyone who (in sum) has unauthorized possession of, access to, or control over any information relating to the national defense and transmits, or willfully retains, or fails to deliver that information to the United States.

Together, this authority would seem to render it difficult for an outgoing president to remove classified materials from the government’s control, regardless of whether they are deemed private property.

Or so we thought.

Section 793(e) is among the statutory provisions under which former President Trump was indicted, in the very case OLC cites as a reason to jettison the PRA. Any hope that Title 18 would provide an effective tool for preventing the removal of classified materials from the government’s control is dubious. The prior indictment shows that criminal sanctions are a post hoc, protracted, and potentially unsuccessful remedy that is no substitute for a statutory framework for the preservation of classified presidential materials.

It is also possible that the President’s Article II powers to protect classified information could be invoked to maintain classified presidential materials with the government. Yet these powers can be a double-edged sword. An incoming president in theory should be able to use this authority to halt any effort to remove classified materials from the government’s legal control and physical security requirements. Conceivably, however, an outgoing president may resist such efforts, resting on OLC’s private property theory and perhaps favoring a private presidential archive to secure materials – thus creating a significant constitutional dispute between a new and former president.

An outgoing president might also try to “declassify” at least some records before leaving office, based on the same Article II power that is supposed to protect this information. This gambit should fail at least as to any effort to declassify presidential materials en masse. Declassification procedures under the current presidential executive order, if followed, require a careful and particularized analysis of what information remains classified or can be declassified. And some categories of information are subject to distinct legal protections and declassification procedures, such as nuclear weapons information subject to the Atomic Energy Act of 1945 and NATO classified information governed by separate treaty-based restrictions.

Still, an outgoing president, emboldened by OLC’s theory of private ownership and discretion, could attempt to declassify at least some materials before leaving office in order to control them thereafter without classification restrictions. The classification system is based in part on the good faith cooperation of those (including presidents) who enter government service and receive access to the nation’s secrets. If that public trust is not respected, then significant disputes will inevitably arise. OLC’s theory of private ownership of presidential records makes those disputes more likely.

So What Happens Now?

All of these concerns are upon us right now: OLC’s memo concludes by saying that “the President need not comply” with the PRA. That would appear to apply not only to how classified presidential records will be treated when the current administration concludes, but to classified records of the first Trump Administration already at NARA and, for that matter, the classified records of any other former president subject to the PRA.

OLC needs to explain how its theory of presidential discretion will co-exist with the government’s undisputed authority to control custody and access to classified information. Separately, NARA should do everything in its power to ensure the continued preservation of presidential materials for historical access, regardless of whether the PRA governs. Congress should consider measures, separate from the PRA, to ensure continued government control of classified presidential materials.

Perhaps the biggest fears we have outlined will not come to pass, even if OLC’s analysis of the PRA were sustained in current legal challenges. Perhaps even then outgoing presidents will acknowledge the U.S. government’s ongoing authority to physically and legally control classified materials.

But OLC’s opinion has triggered the questions we have raised and the country deserves some answers.

Anthony J. Coppolino is a former member of the Senior Executive Service, who served as Deputy Director in the Federal Program Branch of the U.S. Department of Justice’s Civil Division. Jason R. Baron is a former trial attorney in DOJ’s Federal Programs Branch, and a former Director of Litigation at the National Archives and Records Administration. Both authors served as DOJ counsel of record in Armstrong v. Executive Office of the President.