DOJ opinion declares Presidential Records Act unconstitutional; court orders White House to comply

The Presidential Records Act of 1978, enacted in the wake of the Watergate scandal, establishes that the records of a president and vice president belong to the United States rather than to the officeholder personally, and requires that they be preserved and eventually transferred to the National Archives and Records Administration. In April 2026, the Justice Department's Office of Legal Counsel issued a memorandum opinion concluding that the Act is unconstitutional because it exceeds Congress's power, and advising that President Trump was therefore not bound to comply with it. The recordable abuse here is that posture: an executive-branch legal opinion used to declare a duly enacted federal statute void and to relieve the President of a preservation duty Congress imposed.

The American Historical Association, the watchdog group American Oversight, and the Freedom of the Press Foundation sued to invalidate the Justice Department's opinion and to compel compliance with the Act. On May 20, 2026, U.S. District Judge John Bates granted a preliminary injunction. In a 54-page decision, Bates held that the Presidential Records Act is "likely constitutional," rejecting the Office of Legal Counsel's reasoning as resting on a misreading of Supreme Court precedent, and found a substantial risk that covered records were not being preserved. The order requires most Executive Office of the President staff — including White House chief of staff Susie Wiles, deputy chief of staff Stephen Miller, the National Security Council, and the Council of Economic Advisers — to comply with the Act. It takes effect at 9 a.m. on May 26, 2026.

The injunction does not bind President Trump or Vice President JD Vance directly; courts generally may not enjoin the President in the exercise of official duties. This entry is recorded as an abuse of power regardless of the court's intervening check: under the publication's broken-windows principle, an executive attempt to nullify a federal statute by its own legal opinion and stop complying with it remains part of the record even when a court restrains it. The plaintiffs cited Trump's retention of 15 boxes of records at the end of his first term — material later central to the federal classified-documents prosecution that ended after his 2024 reelection — as reason to expect non-compliance. Bates wrote that it is "not for this Court, [the Office of Legal Counsel], or the White House to second guess Congress's lawful determination" that the public is eventually entitled to access these records.

Updates

2026-04-14 — DOJ and National Archives refused to commit to preserving records pending litigation [4, 5]

Ahead of the May 20 injunction, American Oversight and the American Historical Association filed a motion for a preliminary injunction after the National Archives and the Justice Department declined to commit that presidential records would be preserved while the case was litigated, warning that without court intervention the records could be "lost to history."

2026-08-19 — Watchdog groups urged appeals court to uphold the injunction [6]

American Oversight, the American Historical Association, Freedom of the Press Foundation, and Citizens for Responsibility and Ethics in Washington filed a response brief in the U.S. Court of Appeals for the D.C. Circuit urging it to reject the administration's appeal and uphold Judge Bates's May 20 order requiring compliance with the Act. The administration's sole argument on appeal is that the Act is unconstitutional in its entirety -- the same claim the district court already rejected.

2026-08-26 — Three more coalitions filed amicus briefs backing the injunction [7, 8, 9]

Six former Archivists of the United States and a former NARA general counsel, a group of former National Security Council officials, and a group of members of Congress each filed separate amicus briefs in the D.C. Circuit appeal, urging the court to uphold Judge Bates's injunction — additional filings distinct from the August 19 brief already recorded above. Oral argument in the appeal is scheduled for October 16, 2026.