Of the many lawsuits challenging the legality or constitutionality of actions by the Trump Administration this year, the case involving the Presidential Records Act is likely just a blip on the radar of most Americans, but it should loom larger.
The case–really two lawsuits consolidated by the lower court judge–seeks to block the Trump Administration from violating the Presidential Records Act (PRA), enacted in 1978 in response to concerns that President Richard Nixon would destroy Watergate scandal-related documents. The act mandates the preservation of materials related to the official duties of the president, vice president or their staffs, and establishes that those materials are public property.
What is happening with the act and the Trump Administration is a significant piece of an effort by the administration to control or impose its view of “history” now and in the future. Other efforts recently included:
–the replacement of an exhibit at George Washington’s home in Philadelphia that showed his ownership of slaves
–an order directing placement of warning signs at the Smithsonian Museum of American History and accusing the museum of inaccuracy
–the purging of books focusing on diversity, equity and inclusion at military service academies
–the ordering all military branches to scrub online images and articles, such as of the Navajo Code Talkers and Tuskegee Airmen
–the attempt to rename the Kennedy Center, which was built to honor the fallen President John Kennedy, to add the Trump name
–executive orders renaming the Gulf of Mexico as the Gulf of America and Lake Ontario as Lake America– both of which are legally questionable
The administration was forced to reverse course on some of these actions in the face of public criticism and outcry. But some of the efforts continue in the courts. Remember, too, the boxes of documents stacked in the bathroom at Trump’s home, Mar-a-Lago? His retention of those documents at the end of his first term triggered a fight with the National Archives and led to Special Counsel Jack Smith’s investigation and indictment of Trump.
The current threat to the Presidential Records Act arose on April 1, 2026, when, at the urging of the White House Counsel, the Office of Legal Counsel within the U.S. Justice Department issued an opinion stating that the nearly 50-year-old act was unconstitutional. The opinion, advisory only, stated:
“The PRA is not a valid exercise of Congress’s Article I authority and unconstitutionally intrudes on the independence and autonomy of the President guaranteed by Article II. The Act establishes a permanent and burdensome regime of congressional regulation of the Presidency untethered from any valid and identifiable legislative purpose. For these reasons, the PRA is unconstitutional, and the President need not further comply with its dictates.”
The administration quickly issued new guidance on how to preserve records and materials that was viewed by many as less burdensome than the Act’s requirements.
Lawsuits followed almost immediately seeking to defend the act’s constitutionality and to prevent the Trump administration from failing to comply with the act. The suits were filed in federal court in Washington D.C., by Freedom of the Press Foundation and Citizens for Responsibility and Ethics in Washington (CREW). A second suit was filed by the American Historical Association and American Oversight.
The groups bringing the lawsuits warned that under the Justice Department’s opinion, public access to millions of records could be blocked, and lessons from how decisions were made and the ability to hold executive officials accountable for corruption or abuses of power would be lost.
The two cases were assigned to U.S. District Judge John D. Bates who in May 2026 ruled in favor of a preliminary injunction requiring the administration to comply with the act. In his opinion, Bates wrote that the act “democratizes the history of an indispensable institution. Access to those records allows future presidents to pick up where their predecessors left off, Congress to identify inefficiency and malfeasance, and the public to learn from the mistakes of the past.”
One of the key elements that courts must consider in deciding whether to issue an injunction is whether those seeking it are likely to prevail on the merits if the case goes to trial.
“On the merits, the Records Act is likely constitutional,” Bates wrote. “It was validly enacted by Congress under the Property Clause because Congress may prospectively designate presidential records as federal property and then regulate that property. And it is also a valid exercise of the Necessary and Proper Clause as it promotes the accountability and efficiency of Executive Branch operations. Moreover, it does not impermissibly intrude on any presidential prerogative, especially because Presidents– including President Trump in his first term– have complied without complaint for almost 50 years….”
The Trump administration has appealed the judge’s order to the U.S. Court of Appeals for the District of Columbia.
When Judge Bates issued his opinion in May, he opened its 54 pages with a quotation from Goerge Orwell’s 1949 book, 1984, perhaps as a reminder or caution to all Americans. The quotation is:
“Who controls the past controls the future, who controls the present controls the past.”
Marcia Coyle is a regular contributor to Constitution Daily. She was the Supreme Court Correspondent for The National Law Journal and PBS NewsHour who has covered the Supreme Court for more than three decades.
