Three Amicus Briefs in Case Brought by Watchdogs and Historians Reject Trump Administration’s Claim That a Nearly 50-Year-Old Recordkeeping Law Is Unconstitutional
WASHINGTON, DC — Three groups filed amicus briefs in the US Court of Appeals for the DC Circuit backing the American Historical Association (AHA), American Oversight, Freedom of the Press Foundation, and Citizens for Responsibility and Ethics in Washington (CREW) in their fight to stop the Trump administration from evading the Presidential Records Act (PRA).
The friend-of-the-court briefs were filed by 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 (NARA), including former archivists of the United States. Taken together, the filings argue that the administration’s bid to declare the PRA unconstitutional ignores the law’s legislative history, misreads its real-world operation, and threatens continuity and the government’s ability to preserve and access its own history.
The briefs, filed in support of the watchdogs’ and historians’ efforts, urge the D.C. Circuit to affirm the district court’s order requiring Trump administration officials to comply with the PRA while the underlying lawsuit proceeds:
- Members of Congress (Read): More than 100 members of Congress — including House minority leadership and senior members of committees with jurisdiction over records preservation — draw on the PRA’s legislative history to argue that Congress deliberately built the law to balance public access against presidential prerogatives. The brief details how Congress — following a multi-year executive and legislative branch commission and extensive hearings — added specific accommodations for executive privilege, considered the risk of chilling candid staff advice, and narrowly tailored the definition of covered records. The brief argues that both the Department of Justice’s Office of Legal Counsel (OLC) opinion and the administration’s appeal largely ignore this legislative record, and that Congress’s considered, bipartisan balancing of interests defeats the claim that the PRA lacks any legitimate legislative purpose.
- Former senior national security officials (Read): Former top national security officials who served across Republican and Democratic administrations — including former CIA Directors John Brennan and General Michael Hayden, former National Security Advisor Susan Rice, and former Directors of National Intelligence James Clapper and Avril Haines — argue from first-hand experience that the PRA does not chill candid advice or burden the presidency, contrary to the Trump administration’s claims. Their brief argues that the PRA actually protects a sitting president’s power by ensuring access to a predecessor’s national security records — including memoranda of conversations with foreign leaders that often exist nowhere else. The brief warns that if the Trump administration prevails, an outgoing president could treat sensitive national security records as personal property and withhold them from a successor, leaving the United States “disadvantaged on the world stage” and vulnerable to foreign governments misrepresenting past commitments.
- Former National Archives officials (Read): More than a half dozen former leaders of NARA who served under presidents of both parties argue from direct administrative experience that the PRA imposes minimal burden on the presidency. Their brief explains that NARA, the agency responsible for administering the PRA, handles the bulk of the practical work of preserving presidential records, that the president retains full control over his records while in office, and that compliance is now a largely routine, IT-driven process. The brief notes that no prior president — including Trump during his first term — ever suggested the PRA was unconstitutional or unduly burdensome.
“These briefs, written by former leadership of the National Archives, national security officials, and members of Congress from across the nation, demonstrate how essential the Presidential Records Act is to the functioning of our democracy,” said Dr. Sarah Weicksel, the American Historical Association’s executive director. “By preserving the records that document the history of our nation, we ensure that future Americans have essential knowledge for both understanding our past and planning for the future.”
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.
Soon after, AHA and American Oversight filed suit to block the administration from evading the law, warning that the OLC opinion could jeopardize public access to hundreds of millions of presidential records, including from prior administrations. The groups subsequently 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 proceeds. On May 20, 2026, the district court granted that request, ordering staff of the Executive Office of the President to fully comply with the PRA. The judge’s decision opened with a quote from George Orwell: “Who controls the past controls the future; who controls the present controls the past.”
The Trump administration appealed that ruling to the D.C. Circuit. Last week, AHA, American Oversight, Freedom of the Press Foundation, and CREW filed a response brief urging the court to reject the administration’s renewed attempt to evade the PRA and instead affirm the district court’s order requiring administration officials to comply with the law while the case proceeds.
In their response brief, the historians and watchdogs argue that the administration’s appeal fails at the threshold: To succeed on a facial challenge, the administration must show that the PRA is unconstitutional in every one of its applications, or that an unconstitutional provision cannot be severed from the rest of the law. The brief argues the administration does neither — and in fact, the administration concedes that the PRA serves legitimate purposes in other contexts, undercutting its own claim that the law must be struck down in its entirety.
On the merits, the brief argues that the U.S. Constitution’s Property Clause and the Necessary and Proper Clause each independently give Congress the authority to require preservation of and appropriate access to presidential records, and that the act does not violate the separation of powers doctrine. The brief notes that the Supreme Court already rejected nearly identical arguments when it upheld the PRA’s Watergate-era predecessor statute in Nixon v. Administrator of General Services. It also demonstrates that in almost 50 years of operation, the administration has not identified a single instance in which the PRA has actually impeded a president’s ability to do their job.
The groups argue that if the Trump administration’s position is allowed to stand, it would give presidents unilateral power to decide what records of their time in office are preserved, disclosed, or destroyed — undermining nearly half a century of settled law establishing that presidential records belong to the American people, not to any individual officeholder.
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 (over 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.