The White House must continue to abide by statutory requirements to preserve presidential records, despite a recent Justice Department opinion holding that the law is unconstitutional, a federal judge ruled.
An April opinion out of DOJ’s Office of Legal Counsel concluded the Presidential Records Act exceeds Congress’ authority. Subsequent guidance issued by the White House last month likely doesn’t comply with the statute, which doesn’t provide a basis for the president to disregard its requirements, Judge John D. Bates of the US District Court for the District of Columbia said Wednesday.
The statute, which followed the Watergate scandal, requires the preservation of certain records generated by the president and their staff. The law was amended in 2014 to include electronic records, and required officials to use government accounts when sending any presidential records electronically.
The guidance likely doesn’t comply with the records law’s preservation requirements, because it contemplates that some use of personal devices for government business could be conducted, but lacks any provision to preserve those communications, Bates said. The statue doesn’t allow for “discretionary deletion or piecemeal preservation,” and requires all text messages from non-official accounts be copied or forwarded to official ones within 20 days, the judge said.
The guidance also doesn’t describe how the government will handle the preservation of records created by the president or vice president or the disposal of records. The statute permits disposal of records that don’t have any historical or evidentiary value, but the president must consult the archivist, who also must consult Congress, before moving forward. But there’s “no indication” the new guidance contemplates any consultation before the destruction of records at the president’s instruction, Bates said.
The judge also rejected the government’s arguments that Congress lacks authority to regulate the records.
Congress can regulate government property under the US Constitution, and the government holds a property interest in materials created by officials. The statute is also within Congress’ authority to structure the internal operations of the federal government, and it “serves the legitimate goal of promoting efficiency and accountability in the Executive Branch,” Bates said.
The organizations suing over the guidance—including Freedom of the Press Foundation and the American Historical Association—also showed they’re likely to suffer irreparable harm absent an injunction. The groups demonstrated they routinely and plan to continue to submit presidential records requests, and showed a “substantial risk that defendants are currently or soon will be failing to adequately preserve records,” Bates said.
Bates granted a preliminary injunction against some of the defendants, including the White House, the president and vice president’s offices, and White House Chief of Staff Susie Wiles. The injunction does not apply to other defendants, including President Donald Trump and Vice President JD Vance.
Jacobson Lawyers Group PLLC and in-house counsel at American Oversight represent the AHA plaintiffs. In-house counsel at Citizens for Responsibility and Ethics in Washington represent the FPF plaintiffs.
The case is Am. Hist. Ass’n v. Trump, D.D.C., No. 1:26-cv-01169, 5/20/26 and Freedom of the Press Found. v. Trump, D.D.C., No. 1:26-cv-01402, 5/20/26.