Over the past year, President Trump has pushed past multiple limits on executive power — firing watchdogs, dismantling agencies and declaring emergencies to impose tariffs and mobilize troops. Now his administration is challenging a decades-old law that makes presidential papers the public’s, and historians and watchdogs have taken the matter to court.
At issue are millions of documents and electronic messages created or received by the White House: whether they remain presidential property subject to the Presidential Records Act (PRA), or belong to the president personally. Columbia historian Matthew Connelly argues the administration’s approach amounts to trying to make the presidency “answerable to no one, not even the court of history,” and that it threatens the public’s right to hold leaders accountable.
The dispute traces to Watergate. In July 1974 the Supreme Court ordered President Richard Nixon to turn over White House tapes to a special prosecutor; Nixon soon resigned. Congress placed Nixon’s materials in the custody of the National Archives and, in 1978, passed the PRA to apply that custodial principle to future presidents. President Jimmy Carter said the law would help ensure government “is not above the law.”
Administrations of both parties largely followed the PRA until this month, when the Justice Department’s Office of Legal Counsel issued a memo concluding the PRA is unconstitutional. T. Elliot Gaiser, head of OLC, wrote that the PRA “unconstitutionally intrudes on the independence and autonomy of the President guaranteed by Article II,” and that it imposes “a permanent and burdensome regime of congressional regulation of the Presidency untethered from any valid and identifiable legislative purpose.”
Supporters of expansive executive power welcomed the view. Gene Hamilton, former deputy White House counsel and head of America First Legal (AFL), called congressional regulation of presidential paperwork “insane” from a constitutional perspective. AFL published a white paper in 2023 asserting a president has sole authority over presidential records — months after Trump was indicted over alleged retention of classified documents at his Mar-a-Lago resort. That criminal case was dropped after Trump won reelection.
The Mar-a-Lago searches and document controversies help explain the administration’s stance, historians say. Timothy Naftali, former director of the Nixon Presidential Library, describes the attack on the PRA as retroactive vindication for removing public property to a private resort. The American Historical Association, worried about possible destruction of records, sued the administration and asked a federal judge in Washington, D.C., to block officials from discarding presidential materials. The group and the watchdog American Oversight also challenged whether training the White House says it will provide actually applies to the president and vice president themselves.
White House spokeswoman Abigail Jackson said Trump is “committed to preserving records from his historic Administration” and will implement a rigorous retention program and staff training. Historians and their lawyers remain skeptical that such promises protect the highest officials or that they replace the statutory protections the PRA provides.
Legal opponents note precedent: the Supreme Court upheld an earlier records-related law during the Nixon era, and they say the OLC memo disregards that settled law. Dan Jacobson, counsel for the historians, says the executive branch is effectively asserting the power to declare the Court wrong and ignore a law on that basis. Christopher Fonzone, a former Justice Department official, called the new OLC position “a bolt of lightning” unmatched by prior executive-branch or judicial opinions.
Historians warn of practical consequences. Records have led scholars to revise understandings of crises such as the Cuban missile standoff in 1962; if presidents can withhold or destroy materials at will, many episodes may remain obscured. Naftali framed the dispute as a question of accountability: if leaders can erase the record of their actions, how can they be held responsible?
Both sides are preparing to argue in court, with hearings expected early next month. The outcome will shape not just the fate of documents from this administration, but the rules governing presidential records for generations.