Order Requiring White House to Preserve Records at Stake as Trump Administration Asks Court to Declare Watergate-Era Law Unconstitutional
WASHINGTON, DC — This Friday, the American Historical Association (AHA) and American Oversight will urge the US Court of Appeals for the DC Circuit to uphold a court order the groups secured requiring White House officials to comply with the Presidential Records Act (PRA). Ahead of oral arguments in the Trump administration’s appeal, the groups released the following statements:
Dr. Sarah Weicksel, Executive Director of the American Historical Association:
“Every time a record is destroyed, a piece of history is lost. We lose the ability to consult historical evidence, to fact-check, to assess one version of events over another. And that is only part of what is lost if the White House is not required to preserve records.”
“The loss of the historical record would prevent historians from understanding and contextualizing the decisions and actions of a presidential administration. What is ultimately at stake in this case is the ability of Americans to access the full documentary record of their history—something that is essential in a democracy.”
Chioma Chukwu, Executive Director of American Oversight:
“Friday’s argument comes down to a simple question: Is the president above the law? For nearly 50 years, every administration of both parties has been bound by the Presidential Records Act, the law Congress passed after Watergate to make clear that presidential records belong to the American people, not to any one president. If the Trump administration can stop following the law, they can rewrite history to cover up corruption and avoid accountability.
“The Trump administration has already struck out once in court, and the Supreme Court rejected nearly identical arguments decades ago. Yet the administration keeps pressing for a power no president has ever had: the ability to defy a congressionally passed law on what will be preserved, to control what the public will know about how this president used or abused his power.
“Right now, the court’s order is all that stands in the way. If it falls, the court-ordered requirement to preserve this White House’s records ends immediately. Records that are destroyed are gone for good. We are asking the appeals court to uphold that order, because the historical record of the presidency belongs to the American people. Our democracy depends on it.”
Friday’s arguments center on a May 20, 2026, order from Judge John D. Bates of the US District Court for the District of Columbia, who found the groups were likely to succeed in showing that the Department of Justice’s Office of Legal Counsel (OLC) was wrong to declare the PRA unconstitutional. The injunction requires the White House Office, the National Security Council, the US DOGE Service, and advisors to the president to comply in full with the PRA — including preserving all presidential and vice presidential records and refraining from using text or ephemeral messaging accounts for official business without copying an official account.
Judge Bates opened his ruling by quoting George Orwell: “Who controls the past controls the future; who controls the present controls the past.”
The dispute traces back to an April 1, 2026, OLC opinion that declared the PRA unconstitutional and advised President Trump that he “need not further comply” with its requirements. The next day, the White House Counsel’s Office issued guidance directing White House staff to follow that opinion — making record preservation voluntary rather than mandatory, and specifically instructing staff not to preserve text messages except in narrow circumstances.
American Oversight and AHA filed suit days later, warning that the OLC opinion could jeopardize public access to hundreds of millions of presidential records, including from prior administrations. Legal experts and historians warned that applying the opinion could block access to more than 700 million White House emails alone. The groups sought emergency relief after the administration refused to commit to preserving records — including those created on personal devices or sent through encrypted messaging apps — while the case proceeded.
On appeal, the Trump administration’s sole argument is that the PRA is facially unconstitutional in its entirety. In their response brief, American Oversight and AHA — along with Freedom of the Press Foundation and Citizens for Responsibility and Ethics in Washington (CREW) — argue that the Trump administration’s appeal fails at the threshold.
They note the administration has not shown that the PRA is unconstitutional in every one of its applications, and it concedes that the law serves legitimate purposes in other contexts. On the merits, the brief argues that the Constitution’s Property Clause and Necessary and Proper Clause each independently give Congress authority to require the preservation of presidential records, and notes that the Supreme Court rejected nearly identical arguments when it upheld the PRA’s Watergate-era predecessor in Nixon v. Administrator of General Services. The brief also notes that in nearly 50 years, the administration has not identified a single instance in which the PRA actually impeded a president’s ability to do the job.
The groups’ position is backed by friend-of-the-court briefs from 106 members of Congress, 25 former senior national security officials who served under presidents of both parties, and seven former senior leaders of the National Archives and Records Administration, including former archivists of the United States. Together, the briefs argue that the PRA imposes minimal burden on the presidency, protects a sitting president’s access to a predecessor’s national security records, and reflects a deliberate balance Congress struck after Watergate.
The administration’s position also threatens access to records from Trump’s first term, which became eligible for public access under the PRA on January 20, 2026, and for which American Oversight filed a sweeping set of Freedom of Information Act requests that same day.
Trump’s handling of records from that term has already drawn scrutiny: the National Archives had to recover records taken to Mar-a-Lago, and then-Special Counsel Jack Smith later brought charges against Trump for unlawfully retaining classified documents. Volume II of Smith’s report on that case remains blocked from public release under a court order that American Oversight is challenging on appeal.
Oral arguments are scheduled for 9:30 a.m. on Friday, Oct. 16, at the E. Barrett Prettyman U.S. Courthouse in Washington, D.C.
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About the American Historical Association
Founded in 1884 and incorporated by Congress in 1889 for the promotion of historical studies, the American Historical Association provides leadership for the discipline and promotes the critical role of historical thinking in public life. The Association defends academic freedom, develops professional standards, supports innovative scholarship and teaching, and helps to sustain and enhance the work of historians. As the largest membership association of professional historians in the world (10,000 members), the AHA serves historians in a wide variety of professions and represents every historical era and geographical area. Learn more at historians.org.
About American Oversight
American Oversight is a non-partisan, 501(c)(3) nonprofit ethics watchdog that uses public records requests backed by litigation to expose official misconduct, threats to democracy, and abuses of power at all levels of government. Documents obtained by American Oversight have supported investigative work by journalists, congressional committees, and independent watchdogs, and have been featured in hundreds of news reports across the country. Follow us at @weareoversight and learn more at americanoversight.org.