Federal judge orders White House to preserve records under 1978 law

Congress passed the 📖Presidential Records Act in 1978 directly because of Richard Nixon. After Nixon resigned in 1974, he tried to destroy the White House tapes and documents from his presidency — materials the public would eventually use to understand Watergate. Congress responded by declaring that all records created by the president and White House staff in the course of official duties belong to the United States government, not the president personally. The at the end of each administration and manages public access through a FOIA process that begins five years after the president leaves office.

Before the PRA, presidential papers were treated as private property. Nixon wasn't the first president to take records home — many did — but his was the first resignation, and Congress decided the public's stake in those records was too important to leave to presidential discretion. The law covers all records on any medium: paper, email, text messages, and encrypted messaging apps like Signal.

On April 1, 2026, the DOJ's 📖Office of Legal Counsel issued a 52-page memo declaring the 📖Presidential Records Act unconstitutional. Assistant Attorney General T. Elliot Gaiser — a Trump appointee leading the OLC — wrote that the PRA 'exceeds Congress's enumerated and implied powers' and 'aggrandizes the Legislative Branch at the expense of the constitutional independence and autonomy of the Executive.' The memo concluded that with the law's requirements.

The OLC functions as the executive branch's internal legal arbiter. Its opinions are binding on federal agencies unless overturned by a court. Gaiser's memo effectively made it executive branch policy that the PRA was optional — giving the White House legal cover to stop preserving, forwarding, and archiving records that the public would otherwise have a statutory right to eventually access.

White House Counsel David Warrington followed up the OLC memo in April 2026 with internal guidance to White House staff, telling employees his guidance replaced the 📖Presidential Records Act. Warrington's new rules only addressed preservation of emails and standard text messages — they like Signal chats entirely, even though Signal's 'disappearing messages' feature had already drawn scrutiny from congressional oversight committees after a Signal group chat about military operations was exposed earlier in the administration.

The gap was significant: Signal allows messages to auto-delete after a set time, and once deleted, those records can't be recovered. Warrington's guidance created a policy window in which senior aides could legally claim compliance with his internal rules while Signal messages about official business vanished permanently.

The American Historical Association and the watchdog group American Oversight filed suit in federal court in Washington, D.C., on , challenging both the OLC memo and the Warrington guidance. Case number 26-01169, assigned to Judge John D. Bates, asked the court to declare the PRA constitutional, block the administration from relying on the OLC memo, and compel compliance with the law.

The American Historical Association argued that the loss of official records would cause concrete harm to historians, researchers, and the public's ability to understand how government decisions were made. American Oversight, a government accountability watchdog, argued that the OLC memo functioned as a permission slip for officials to circumvent federal law with no democratic accountability.

Judge Bates issued a 54-page 📖preliminary injunction on May 20, 2026. The ruling rejected the OLC's constitutional theory on two grounds. First, Bates found the PRA validly enacted under the Property Clause of Article IV — Congress can prospectively designate certain materials as federal property and then regulate that property's management. Second, he found that even if there were some tension with executive autonomy, the law's purpose served a legitimate congressional interest: ensuring citizens eventually have access to records of official activities carried out in their name.

Bates : 'Who controls the past controls the future; who controls the present controls the past.' He also cited the Shakespeare inscription on the National Archives building: 'What is past is prologue.' The ruling concluded that adopting the government's position 'would disable Congress and future presidents from reflecting on experience.'

The injunction covers the White House Office, the National Security Council, the Council of Economic Advisers, and the U.S. Secret Service — all units of the Executive Office of the President. Among the named individuals who must comply are Chief of Staff Susie Wiles and Deputy Chief of Staff Stephen Miller. The , and all covered offices and aides must file a notice with the court by June 2 confirming what steps they have taken to comply.

President Trump and Vice President JD Vance are not covered by the order. Bates cited Franklin v. Massachusetts — a 1992 Supreme Court precedent — for the principle that courts generally may not 'enjoin the President in the performance of his official duties.' The distinction matters: the aides and offices named in the order are bound; the principal himself is not, leaving enforcement dependent on subordinate compliance.

The ruling didn't end the constitutional debate — it resolved the 📖preliminary injunction question, not the final merits. Bates found the plaintiffs were 'likely to succeed' on the constitutional claim, a lower bar than a final ruling. The administration can appeal to the D.C. Circuit Court of Appeals, and the case is virtually certain to generate further litigation over whether Congress can mandate how the Executive Office of the President preserves its own records.

The Property Clause theory Bates relied on is well-established but has rarely been tested against presidential records specifically. Earlier administrations — including Trump's first term — also had compliance disputes with the PRA, but no prior administration had sought a formal OLC opinion declaring the entire statute unconstitutional. Legal scholars noted that Gaiser's memo represented a novel escalation in .

The practical stakes run deeper than the immediate litigation. Presidential records are the raw material historians use to reconstruct how decisions were made, who was in the room, and what alternatives were considered. Records destroyed during the period between the April 1 OLC memo and the May 26 effective date of Bates's order — nearly eight weeks — can't be recovered. The PRA's FOIA pipeline means those gaps in the archive don't become visible to the public for years: records from the current administration won't be fully accessible until after 2031 at the earliest.

Donald Sherman, president of Citizens for Responsibility and Ethics in Washington, said the ruling found that Trump and his administration 'acted illegally as though presidential records are theirs to destroy or hoard at will.' The American Historical Association called the ruling a critical protection for 'the historical record that belongs to all Americans.'