A federal judge has ordered President Donald Trump’s advisors and staff to retain certain presidential and vice presidential records in compliance with the 1978 Presidential Records Act (PRA). In a preliminary injunction, the judge ordered most White House staff and President Trump’s top advisers to preserve presidential and vice presidential records covered by the PRA, rejecting the Justice Department’s recent opinion that the law is unconstitutional.
In the May 20 order, Judge John Bates found the statute was most likely constitutional and ordered White House officials to comply with the Act. The judge said the PRA promotes accountability and transparency in the operations of the executive branch and noted that past presidents have complied without complaint, including Trump during his first term.
Bates did not directly order Trump or Vice President J.D. Vance to comply with the law because the court can’t stop them from pursuing their official duties. However, the judge noted that many records created by the president or vice president are transmitted to their aides, and the aides have the duty to retain those records under the PRA.
The PRA states that all records created or received by the president or vice president are not their personal property. Instead, the records are the property of the United States and must be preserved. The legislation also requires that the records be transferred to the National Archives and Records Administration at the conclusion of a president’s administration.
The plaintiffs in the case are two watchdog groups that asked the court to ensure the White House complied with the PRA in April after the Justice Department’s Office of Legal Counsel (OLC) issued a legal opinion declaring the legislation unconstitutional. The two groups, American Historical Association and American Oversight, claimed the OLC opinion allowed the president to destroy records or to retain them for his own personal use after leaving office. Other watchdog and press freedom organizations, including Citizens for Responsibility and Ethics in Washington and the Freedom of the Press Foundation, filed related lawsuits that challenged the White House’s position on the Presidential Records Act.
“This case has always been about something larger than records management. It is about whether a president can treat government records as personal property—deciding for himself what will be preserved, what will be disclosed, and what can simply be destroyed,” Chioma Chukwu, Executive Director of American Oversight, said in a statement after the decision was announced. The White House has yet to comment on the decision.
PRA Followed Watergate-Era Dispute
When Former President Richard Nixon left office following the Watergate Scandal, there was a dispute over ownership of his presidential papers and White House recordings. In response, Congress passed the 1974 Presidential Recordings and Materials Preservation Act, requiring Nixon to turn over his records to the National Archives. In 1978, Congress passed the PRA to ensure that future presidents also turn their records over to the archives.
The PRA governs the preservation of documentary materials the president, vice president, or presidential staff created or received while performing their official duties. It provides that the records, including electronic records, are the property of the United States and not the officeholder’s property. However, the PRA does not govern purely personal communications or communications that are irrelevant to the president’s duties. In 2014, Congress amended the PRA to bar executive department personnel from using non-official electronic messaging accounts unless they took steps to preserve the conversation.
OLC Says PRA Unconstitutional
At the request of White House counsel, the OLC issued the opinion finding that the PRA was unconstitutional because it exceeded the powers of Congress and violated the separation of powers. The opinion explained that the Supreme Court’s decision regarding Nixon’s records only addressed the Presidential Recordings and Materials Preservation Act, which was narrower than the PRA. The OLC memo also said the Supreme Court’s previous decision was incorrect because it focused on the regulation of federal agencies and did not support the regulation of the president’s papers.
The day after the OLC opinion was released, the White House counsel issued a memo on records guidance to the Executive Office of the President (EOP) staff on how records would be preserved in light of the opinion. The memo generally explains how the EOP staff are to retain specified records related to the performance of their duties and are not to take records with them when they leave the White House. It also states that EOP should not use their personal devices for official business “whenever possible,” but does not bar them from doing so.
While the records guidance addresses records retention by EOP staff, it fails to address the preservation of any records created by the president or vice president. As a result, it appears the guidance does not require records created by the president or vice president to be retained and would allow them to take their records with them when they leave office.
Four days after the records guidance was issued, the American Historical Association and American Oversight sued several federal defendants for violating the PRA in the U.S. District Court for the District of Columbia.
Records Guidance Can’t Ignore the PRA
After observing that the 2026 records guidance was silent with regard to records created by the president or vice president, the judge noted that the definition of presidential records in the PRA expressly includes records created by the president. Therefore, failure to preserve records created by the president would be a violation of the PRA. During oral arguments, the government conceded that presidential records created by the president on a personal device could have historical value, but would not need to be retained under the records guidance.
In defending the White House’s records guidance, the government maintained that it was lawful because the president has the inherent authority to manage the records of the executive branch. The judge explained that the records guidance was at odds with federal law. He added that the only way the records guidance could pre-empt the PRA is if the legislation was found to be unconstitutional.
After analyzing the government’s arguments, he determined that the PRA was constitutional.
