The Office of Legal Counsel concluded that the Presidential Records Act (PRA) is unconstitutional. In Civitas Outlook, I explained why I thought this opinion was consistent with recent Supreme Court precedents, including Trump v. Mazars.
Others, unsurprisingly, disagree. Christopher Fonzone, who headed OLC during the Biden Administration, writes that the PRA is constitutional. Here, I want to focus on one aspect of Fonzone’s analysis: who owns the President’s papers?
Fonzone writes:
First and foremost, the Property Clause. Article IV of the Constitution expressly grants Congress the “Power to dispose of and make all needful Rules and Regulations respecting” U.S. property. Since the Constitution and Congress create and fund all of the offices in the White House, those offices are unquestionably government offices. As OLC recognized in the 1978 testimony concerning the constitutionality of the PRA, “[i]t is well established that the work product of government employees prepared at the direction of their employer or in the course of their duties is government property.” Thus, Congress may “extend this principle” to require the preservation of “records prepared or received by the President in the course of his duties” and “no substantial separation of powers problems would, in our view, be raised.” (As I discuss below, the April 1, 2026 OLC opinion includes no discussion of the Property Clause.)
The Carter Administration may have reached this conclusion, but (thankfully) one executive branch cannot bind another executive branch–especially one that was “especially pleased” to acquiesce to so many congressional constraints on presidential power.
Fonzone does not mention that the Supreme Court expressly left this issue open in Nixon v. Administrator of General Services (1977):
We see no reason to engage in the debate whether appellant [President Nixon] has legal title to the materials. . . .
The litigation over Nixon’s records did not end in 1978. There was extensive caselaw that stretched decades. In 1992, the D.C. Circuit stated that the papers did belong to Nixon:
The government has, pursuant to PRMPA, taken complete possession and control of the Nixon papers. Although a great public interest may justify a taking, it does not convert the taking into mere regulation. Here, the few rights that Mr. Nixon retains in the materials are so fractured that his original property interest has been destroyed. Indeed, the rights that have been granted to Mr. Nixon are so modest that they cannot be equated with “property.” In such a case, we have little difficulty in concluding that PRMPA constitutes a per se taking of Mr. Nixon’s property.
For those who keep track, the panel opinion was written by Judge Harry Edwards, and Judge Ruth Bader Ginsburg joined it in full.
The recent OLC opinion mentions the 1992 case and points out that the Presidential Records Act nowhere authorizes payment of just compensation: “. . . we note that the PRA is plainly not an attempt to exercise the power of eminent domain: Unlike the PRMPA, it contains no just-compensation provision.”
And wait, there’s more! The Domestic Emoluments Clause is relevant. Seth Barrett Tillman and I discussed this issue in our contribution to the Heritage Guide to the Constitution:
After President Richard Nixon resigned from office, the General Services Administration (GSA) took custody of certain materials from the Nixon presidency. Nixon sued the government to retain control of these papers, recordings, and other items. Nixon claimed that these materials were his property. But the government argued that “the salary and benefits provided to Mr. Nixon by the United States during his presidency were the only economic benefits the United States could have provided him.”26 As a result, the government claimed, the Domestic Emoluments Clause prohibited Nixon “from receiving any ’emolument’ from the United States beyond the compensation fixed by Congress before he . . . took office.”27 Moreover, Nixon would be “precluded from taking materials and selling them for personal profit during, or after, his . . . presidency.”28 Thus, he was “not entitled to any [further] compensation by virtue of the Emoluments Clause.”29 Nixon countered “that since the presidential papers were never public property to begin with, the [Domestic] Emoluments Clause does not apply to them.”30
In Griffin v. United States (1995), a federal district court recognized that the Domestic Emoluments Clause “addressed the Framers’ concern that the President should not have the ability to convert his or her office for profit.”31 However, the court also found that the clause “does not bar the award of compensation.” This provision applies while a President is in office, but the clause “would not be violated because Mr. Nixon would receive compensation subsequent to the expiration of his term of office.”32 Any “proceeds derived from the sale of Mr. Nixon’s presidential papers do not constitute an emolument.”33 Past Presidents had negotiated “fancy sums” for “lucrative library deals,” and the Library of Congress has “authorized purchases” of materials from Presidents.34 The court declined to address whether “a sitting President could sell his or her papers while in office” because those facts were not presented.35
Griffin is in some tension with an earlier district court decision, Nixon v. Sampson (1975).36 That case held that Nixon’s materials from the White House were “directly related to the performance of the Office of the President and are of incalculable value.” The judge ruled that it would violate the Domestic Emoluments Clause if the President was “given or . . . permitted to assert a personal right to such materials.” Nixon argued that this material was “not an emolument because his right of ownership does not come into existence until he leaves office.”37 The court rejected this argument: “[I]f [Nixon’s] claim of ownership does not come into existence until he leaves office, then it can only be concluded that while he is in office the documents, papers, tapes and other materials were government property.” Sampson was later vacated, and Griffin did not cite Sampson.
The issue of who owns the the President’s papers is not a settled question. When an issue is not yet settled by the Supreme Court, the only way to resolve the issue is what I call the Nike approach: “Just do it!” The executive concludes that the PRA is unconstitutional, stops voluntarily complying with it, and waits to be sued. Without such affirmative action, the President will forever be bound by the leadership of Jimmy Carter. In CASA, the Solicitor General stated clearly that lower courts cannot universally bind the executive branch, but the Supreme Court can. And now, the issue will race to SCOTUS.
In other news, the litigation filed by American Oversight to block the implementation of the OLC opinion hit a stumbling block. The group attempted to judge shop the case to Judge Howell, a friendly forum. They listed this case as “related” to a pre-existing case before Judge Howell involving FOIA and DOGE. The government moved to randomly reassign the case, and Judge Howell agreed:
The only basis for relation to American Oversight asserted in plaintiffs’ Notice of Related case was that the two cases supposedly “involve common issues of fact.” See Pls.’ Not. of Related Case (checking the “common issues of fact” box). Belatedly, and somewhat surprisingly, plaintiffs now assert in response to defendants’ noticed objection to relating the two cases, that they “mistakenly selected only the box for ‘involves common issues of fact,’ and not also the box for ‘relates to common property,'” and proceed to rely first and most heavily in their opposition on the contention that these cases involve as “common property” the records sought by the plaintiff in American Oversight (the “American Oversight Records”). Pls.’ Opp’n at 1-2 & n.1.1 Neither of these prongs in D.D.C. Local Civil Rule 40.5(a)(3)(i) and (ii) provides a basis for relation.
The case was reassigned to Judge Bates.
You see, judge shopping is only bad when conservatives do it. When progressive use chicanery to draw a favored judge, there is no cause for concern. If people wanted to get serious about judge-shopping, the first area of focus is not a few single judge divisions. The rampant abuse of the “related cases” option should be the first priority.
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