Over the past year, President Trump has accelerated efforts to expand executive authority — firing watchdogs, cutting agencies, declaring emergencies to impose tariffs and mobilize troops. Now his administration is challenging a long-standing law that governs the ownership and preservation of White House records, and historians and watchdogs are taking the government to court.
The conflict goes to the heart of how presidential papers are treated. More than a half-century ago, the Supreme Court ordered Richard Nixon to turn over White House recordings, and Congress subsequently placed Nixon’s papers in the custody of the National Archives. In 1978, Congress enacted the Presidential Records Act (PRA) to make clear that presidential records belong to the public and are managed by the National Archives after a presidency ends. President Jimmy Carter described the law as ensuring the government “is not above the law.”
Until recently, administrations of both parties largely accepted that framework. But in a new memo, the Justice Department’s Office of Legal Counsel concluded the PRA is unconstitutional, arguing it violates the separation of powers by imposing “a permanent and burdensome regime of congressional regulation of the Presidency untethered from any valid and identifiable legislative purpose.” The memo was signed by T. Elliot Gaiser, OLC chief.
Supporters of strong executive power hailed the legal view. Gene Hamilton, a former deputy White House counsel who now heads the America First Legal nonprofit, called the idea that Congress can dictate a president’s handling of paperwork “insane.” AFL previously issued a white paper asserting that a president has unquestioned authority over presidential records. That assertion came after Trump was indicted in a classified-documents probe involving material found at his Mar-a-Lago estate; the Justice Department later dropped that case after Trump won reelection.
Historians and preservation advocates say the timing and thrust of the new legal theory echo the Mar-a-Lago episode. Timothy Naftali, former director of the Nixon Presidential Library, suggested the administration’s attack on the PRA seeks retroactive justification for moving public documents to a private residence. The American Historical Association and watchdog groups are suing to block any effort by the administration to destroy or improperly dispose of presidential materials. They asked a federal judge to bar government officials from discarding records covered by the PRA.
Critics note the Supreme Court and precedent have previously upheld the records framework. Dan Jacobson, counsel for the historians, said the OLC memo simply declares the Court wrong, asserting the executive branch may ignore a law based on that disagreement. Former Justice Department lawyer Christopher Fonzone described the memo as an unexpected, sweeping rejection of settled legal understandings.
Historians emphasize what’s at stake: the ability to study and understand presidential decision-making during crises. Matthew Connelly, a Columbia history professor, said the move signals an effort to render the presidency “answerable to no one, not even the court of history.” He and others point to scholarship that has reshaped understanding of moments like the Cuban missile crisis using presidential documents; if records can be withheld or destroyed, future research and accountability would suffer.
The White House responded that President Trump is “committed to preserving records from his historic Administration” and will maintain a rigorous retention program and train staff on document preservation. Lawyers for the historians and American Oversight say that apparent commitment doesn’t clearly extend to the president or vice president themselves.
The dispute is likely to be litigated in court soon. Observers see the case as more than a fight over paperwork: it raises fundamental questions about accountability, separation of powers, and whether a president can unilaterally treat the documentary record of government action as private property.