American Oversight and the American Historical Association have filed suit challenging a sweeping memorandum from the Department of Justice’s Office of Legal Counsel that declared the Presidential Records Act is unconstitutional and that President Donald Trump “need not further comply” with its requirements, effectively encouraging the president to violate federal law.
The lawsuit argues that the memo relies on virtually no judicial authority and defies binding U.S. Supreme Court precedent outright, representing what they say is “a radical attempt to nullify a law that has governed presidential records for nearly half a century.”
The memo reflects a broader push to concentrate power in the presidency, at the expense of the public’s right to know.
If allowed to stand, the administration’s position could have sweeping consequences far beyond Trump’s own records, threatening to upend decades of established law governing presidential transparency.
Legal experts and historians warn that applying the opinion could block public access to hundreds of millions of records — including more than 700 million White House emails — and disrupt the established process for releasing records from prior administrations.
“Since Watergate, Congress has made clear that presidential records belong to the American people — not to any one president,” said Chioma Chukwu, Executive Director of American Oversight.
The organization is a non-partisan, 501(c)(3) nonprofit ethics watchdog that uses public records requests backed by litigation to expose official misconduct, threats to democracy, and abuses of power.
“The DOJ is now pushing a sweeping view of presidential power that would hand control of those records to the White House — a position the Supreme Court has already rejected,” she said in a statement sent to the press.
“The White House does not get to decide what is preserved, what is hidden, or what is destroyed. The law sets an independent process, followed by every administration for nearly half a century, to safeguard public access,” Chukwu said.
“If that framework is cast aside, it puts critical records at risk of being controlled, concealed, or even destroyed before the public ever has a chance to see them.”
American Historical Association (AHA) Executive Director Dr. Sarah Weicksel argues that arguments made by the AHA in 1910 in support of establishing a National Archives remain true – that these records are “materials which historians must use in order to ascertain the truth.”
AHA has advocated for the preservation of federal records since its founding in 1884.
“Presidential records are essential for transparency and accountability in our democracy,” says Weicksel. “They are also essential sources for researching and understanding the American past. Those records and the history they tell belong not to any individual, but to the American people.”
Policy Born of Republican Political Crimes
The Presidential Records Act (PRA) was enacted in 1978 in the wake of the Watergate scandal to ensure the preservation and public accessibility of presidential records.
Previous to the PRA, the 1974 Presidential Recordings and Materials Preservation Act was created by then Richard Nixon’s attempt to move the records of his administration, including those related to various crimes, to California.
Watergate involved dozens of crimes, primarily centered around burglary, illegal wiretapping, and a massive criminal cover-up orchestrated within the White House.
Ultimately, 69 Republicans were indicted and 48 — including top administration officials — were convicted of various offenses.
Afterward the Presidential Records Act (PRA) established that presidential records are the property of the American people, not the president.
In upholding a prior law governing Nixon’s records, the Supreme Court rejected claims that such requirements violate separation of powers, affirming Congress’s authority to regulate the preservation and disclosure of presidential materials.
Since then, no presidential administration — including Trump’s administration in his first term — has questioned the law’s constitutionality.
As recently as last year, the Trump administration itself acknowledged in litigation that White House agencies and offices are subject to the PRA and must comply with its requirements, underscoring the self-serving nature of its current reversal.
Current Threats
The lawsuit also raises urgent concerns about the administration’s current record-keeping practices in the wake of the Office of Legal Counsel (OLC) memo.
Because OLC memos are typically treated as binding across the executive branch, there is a serious risk that the National Archives (NARA) and other officials will halt compliance with the PRA altogether.
“The OLC opinion potentially opens a can of worms for NARA in terms of how it will proceed to open presidential records from past administrations,” Jason R. Baron, former litigation director for the National Archives, told Politico.
“If the Trump Justice Department takes the position that the OLC opinion applies retroactively, we might see NARA being forced to declare that records of past administrations covered by the PRA should always have been considered ‘personal’ in nature, and that courts are without jurisdiction to entertain lawsuits … for access to those records,” Baron said.
The White House has provided no assurances — and under its new policy may not even attempt — to comply with longstanding requirements to preserve presidential records, including restrictions on the use of personal email, text messaging, or encrypted applications for official business.
Without those safeguards, records documenting key decisions and actions could continue to be hidden, lost, and deleted, never preserved at all. Opportunities to reveal past crimes, poor decisions, or other problems in federal government will be lost.
Among these records are those now eligible for public access under the PRA’s five year provision, and for which American Oversight filed a sweeping set of Freedom of Information Act requests seeking records that could provide additional details on corruption, conflicts of interest, and abuses of power during Trump’s first term — one of the most opaque and controversial presidencies in modern history.
In their complaint, American Oversight and the American Historical Association ask the court to declare the PRA constitutional, block the administration from relying on the OLC memo, and compel compliance with federal law — including the preservation of presidential records and the timely release of those records to the public.
The American Historical Association was founded in 1884 and incorporated by Congress in 1889 for the promotion of historical studies.
The association defends academic freedom, develops professional standards, and supports scholarship and teaching. It is the largest membership association of professional historians in the world with over 10,000 members.
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Illustrations, from above: Journalist Norah O’Donnell reviews presidential records at the National Archives with William “Jay” Bosanko, who was serving as the Deputy Archivist of the United States, September 22, 2024; Boxes of records from the Clinton Administration transported to the National Archives in January 2001 (NARA); New York Times Watergate headline, March 2, 1974; and a photo from the indictment against former Donald Trump showing boxes of records illegally stored in a bathroom and shower in the Lake Room at Trump’s Mar-a-Lago estate in Florida (Justice Department photo).
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