Judge Orders White House Staff to Preserve Records After DOJ Argued the Records Act Is Unconstitutional

U.S. District Judge John Bates issued a preliminary injunction on May 20 requiring most White House employees to preserve presidential and vice presidential records under the Presidential Records Act. The order covers Chief of Staff Susie Wiles, Deputy Chief of Staff Stephen Miller, the National Security Council, the Council of Economic Advisers and Executive Office of the President staff, and took effect May 26; Trump and Vice President Vance are exempt. The case, American Historical Association v. Trump, was brought by the American Historical Association, American Oversight and the Freedom of the Press Foundation. The Justice Department's Office of Legal Counsel had taken the position that the 1978 Presidential Records Act exceeds Congress's constitutional authority and that the president is therefore not obligated to comply. Bates found the act likely constitutional, emphasizing that Congress validly determined citizens should eventually have access to records of presidential activities carried out in their name.

The Presidential Records Act was enacted after Watergate to establish that presidential records are public property rather than personal property. An executive-branch legal opinion declaring the statute unconstitutional, without a court so holding, would let the White House decide unilaterally which of its own communications survive.

The injunction is preliminary and remains subject to appeal. The government's constitutional argument has not been accepted by any court in this litigation.