A coalition of government watchdog groups and historical organizations filed a legal brief Wednesday urging a federal appeals court to maintain an order that forces the Trump administration to preserve White House records.
The filing in the U.S. Court of Appeals for the D.C. Circuit comes from American Oversight, the American Historical Association, the Freedom of the Press Foundation, and Citizens for Responsibility and Ethics in Washington (CREW). The groups are responding to an appeal by the Trump administration, which argues that the 1978 Presidential Records Act (PRA) is unconstitutional in its entirety.
The legal battle began earlier this year following an April 1 opinion by the Department of Justice’s Office of Legal Counsel (OLC) stating that the PRA is unconstitutional and advising President Trump that he did not need to comply with it.
The following day, White House Counsel David Warrington issued guidance making record retention voluntary for staff and directing them not to save text messages except under narrow circumstances.
The watchdog and historian groups filed lawsuits shortly after, seeking emergency relief to prevent records from being deleted or destroyed while the legal challenges play out.
On May 20, U.S. District Judge John D. Bates granted a preliminary injunction requiring White House officials, the National Security Council, and other staff in the Executive Office of the President to follow the law and preserve records. In his ruling, Judge Bates cited George Orwell: “Who controls the past controls the future; who controls the present controls the past.”
The administration appealed that decision, maintaining its position that the law unconstitutionally restricts executive power.
“The Trump administration won’t take no for an answer. The district court already rejected its extraordinary claim that the Presidential Records Act is unconstitutional, but instead of dropping that argument, it’s asking the appeals court to revive it,” said Chioma Chukwu, Executive Director of American Oversight. “It’s clear the administration intends to keep pressing this argument as far as it can in pursuit of a power no president has ever had: the ability to arbitrarily decide what will be preserved, what will be disclosed, and what can simply be destroyed. The law is clear and it has bound every administration of both parties for nearly 50 years. We’re asking the appeals court to reject the administration’s argument and uphold the district court’s order. We will continue fighting to ensure that this administration, and any future one, cannot evade the Presidential Records Act or erase the public record.”
In their response brief, the groups argue that Congress holds clear authority under the Constitution’s Property Clause and the Necessary and Proper Clause to mandate the preservation of official presidential documents. They also point to Supreme Court precedent in Nixon v. Administrator of General Services, which upheld the Watergate-era predecessor to the PRA.
“For nearly half a century the Presidential Records Act has required that the records of each presidential administration be preserved in our National Archives, helping to ensure that future administrations have access to essential information and that future generations of Americans have access to the historical evidence that documents our nation’s past,” said Dr. Sarah Weicksel, executive director of the American Historical Association. “We are committed to ensuring that the historical record is preserved in its entirety and remains accessible to the American people to whom it belongs.”
The groups noted in their brief that to successfully invalidate the entire statute on a facial challenge, the government must prove the law has no constitutional application whatsoever, a threshold the plaintiffs argue the administration has failed to meet.
Oral arguments in the consolidated case are scheduled before the D.C. Circuit on October 16.
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