The Trump administration has pushed hard to broaden executive authority in many areas — firing watchdogs, shrinking agencies, declaring emergencies to impose tariffs and mobilize troops. Now it is challenging a decades-old law that determines who owns and preserves White House records, prompting historians and watchdogs to sue.
The dispute centers on the Presidential Records Act (PRA), enacted in 1978 after the Supreme Court forced Richard Nixon to surrender White House recordings and Congress placed Nixon’s papers under the National Archives. The PRA makes presidential records public property, to be managed by the Archives after a president leaves office. Supporters have said the law makes clear the government is not above the law.
That framework has been broadly accepted by administrations of both parties — until a recent opinion from the Justice Department’s Office of Legal Counsel. The memo, signed by OLC chief T. Elliot Gaiser, concludes the PRA is unconstitutional, saying it creates “a permanent and burdensome regime of congressional regulation of the Presidency untethered from any valid and identifiable legislative purpose.”
Conservatives and advocates of stronger executive power have applauded the view. Gene Hamilton, a former deputy White House counsel who now leads America First Legal, called the idea that Congress can dictate a president’s handling of paperwork “insane.” America First Legal previously issued a white paper arguing a president has broad authority over presidential records — an argument that comes after Trump was indicted in a classified-documents investigation tied to material found at Mar-a-Lago; the Justice Department later dropped that case after his reelection.
Historians, archival experts and public-interest groups see the timing and reasoning as linked to that episode. Timothy Naftali, a former director of the Nixon Presidential Library, suggested the administration’s legal attack on the PRA could serve as retroactive justification for moving public records into private hands. The American Historical Association and watchdog groups, including American Oversight, have sued to prevent any destruction or improper disposal of materials covered by the PRA and asked a federal judge to bar officials from discarding those records.
Critics note longstanding legal precedent supporting the records regime. Dan Jacobson, counsel for the historians, said the OLC memo effectively declares the Supreme Court wrong and asserts the executive may ignore statutes based on that disagreement. Former Justice Department lawyer Christopher Fonzone called the memo an unexpected, sweeping rejection of settled legal understandings.
Historians warn of broader consequences: if presidents can withhold or destroy records, scholars and the public lose the documentary basis for understanding presidential decision-making in crises. Columbia historian Matthew Connelly said the move looks like an effort to make the presidency “answerable to no one, not even the court of history,” undermining scholarship that has reshaped understanding of events like the Cuban missile crisis.
The White House says President Trump is “committed to preserving records from his historic Administration,” pledging a rigorous retention program and staff training. But lawyers for the historians and watchdogs say that promise does not clearly bind the president or vice president.
The conflict is poised to be litigated soon. Beyond questions of recordkeeping, the case raises core issues about accountability, separation of powers and whether a president can unilaterally treat the documentary record of government action as private property.