Wednesday, American Oversight and the American Historical Association (AHA), along with Freedom of the Press Foundation and Citizens for Responsibility and Ethics in Washington (CREW), filed a response brief in the U.S. Court of Appeals for the D.C. Circuit, urging the court to reject the Trump administration’s latest attempt to evade the Presidential Records Act (PRA), and instead affirm a district court order requiring administration officials to comply with the law while the underlying lawsuit proceeds.
The filing comes after the Trump administration appealed a May 20, 2026, decision from Judge John D. Bates, which found the groups were likely to succeed in showing that the Department of Justice’s (DOJ) Office of Legal Counsel (OLC) was wrong to declare the PRA unconstitutional. Judge Bates ordered White House Office officials, the National Security Council, and other Executive Office of the President staff to continue preserving presidential records as required by law. He began his order by quoting George Orwell: “Who controls the past controls the future; who controls the present controls the past.”
On appeal, the Trump administration’s sole argument is that the PRA is facially unconstitutional in its entirety — the same sweeping claim the district court already rejected.
“The Trump administration won’t take no for an answer. The district court already rejected its extraordinary claim that the Presidential Records Act is unconstitutional, but instead of dropping that argument, it’s asking the appeals court to revive it,” said Chioma Chukwu, Executive Director of American Oversight. “It’s clear the administration intends to keep pressing this argument as far as it can in pursuit of a power no president has ever had: the ability to arbitrarily decide what will be preserved, what will be disclosed, and what can simply be destroyed. The law is clear and it has bound every administration of both parties for nearly 50 years. We’re asking the appeals court to reject the administration’s argument and uphold the district court’s order. We will continue fighting to ensure that this administration, and any future one, cannot evade the Presidential Records Act or erase the public record.”
“For nearly half a century the Presidential Records Act has required that the records of each presidential administration be preserved in our National Archives, helping to ensure that future administrations have access to essential information and that future generations of Americans have access to the historical evidence that documents our nation’s past,” said Dr. Sarah Weicksel, the American Historical Association’s executive director. “We are committed to ensuring that the historical record is preserved in its entirety and remains accessible to the American people to whom it belongs.”
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, American Oversight and AHA 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. We 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 the Executive Office of the President to fully comply with the PRA.
In our response brief, we 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.
We 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.
