Historians vs Donald Trump: The battle for control of presidential records as the US government yearns for the pre-Nixon years

Donald Trump is fighting for control of his presidential records, with two court cases challenging his administration's wish to ignore the Presidential Records Act. 

The Act covers all "documentary materials", including electronic records, digital communications and text messages, created or received by the president or vice-president, their staff and advisers, that are created as part of the carrying out of their constitutional, statutory, or other responsibilities.

For nearly 200 years presidents of the United States were allowed to do whatever they wanted with their records, including destroy them.

But that all changed in the aftermath of the Watergate scandal in the 1970s, when the US Congress was concerned about Richard Nixon destroying records to cover up documented actions he and others took in response to investigations connected to a burglary of Democratic Party HQ offices in the Watergate building and his re-election campaign.

In 1978, Congress passed the Presidential Records Act, which requires that presidential records automatically transfer into the legal custody of the National Archives and Records Administration (NARA) as soon as a president leaves office.

But the Trump administration is pushing for a return to the pre-Nixon days. 

The US Justice Department's Office of Legal Counsel (OLC) published an opinion on April 1 that the Presidential Records Act is unconstitutional, saying that it exceeds Congress's powers and aggrandises the legislative branch of government at the expense of the executive branch's constitutional independence and autonomy.

Two separate but similar court actions are challenging that opinion, asking the court to ensure compliance with the Presidential Records Act.

Enter the historians

The American Historical Association, a not-for-profit organisation that represents historians, and American Oversight, a non-partisan non-profit watchdog, launched a lawsuit, challenging the OLC opinion.

In a separate case, the Freedom of the Press Foundation and Citizens for Responsibility and Ethics in Washington (CREW) also sued Mr Trump, US Vice-President JD Vance, the Office of the Vice President, the White House, Chief of Staff Susie Wiles and others to defend the Presidential Records Act and require adherence to the statute's public ownership, record-keeping and public disclosure requirements.

In May, US District Judge John D Bates issued an injunction ruling that the White House Office, National Security Council, Department of Government Efficiency (DOGE) Service, and all advisers to the president must comply in full with the Presidential Records Act.

The court ordered that all presidential and vice-presidential records must be preserved, with Justice Bates writing an opinion for both cases saying that the Presidential Records Act is likely constitutional.

"The president is not free to disregard valid laws," the ruling said.

"His actions doing so, therefore, are in excess of his constitutional authority and in violation of federal law.

"Unpreserved or improperly destroyed documents are 'lost forever to history' and therefore injury from failure to preserve presidential records or the unlawful destruction of those records would be irreparable."

Who owns history?

American Historical Association executive director, Dr Sarah Weicksel, said the ruling reaffirmed that presidential records belonged to the American people, not to any one individual.

"Americans deserve the ability to understand the entirety of their history," she said.

"By requiring continued compliance with the Presidential Records Act, this preliminary injunction is an important step forward in ensuring that the documents that tell our nation's history are preserved for future generations."

American Oversight executive director, Chioma Chukwu, said there was "serious danger" posed by the Trump administration's "attempt to cast aside longstanding federal law governing presidential records and replace it with a system dependent largely on presidential discretion and public trust".

"This case has always been about something larger than records management. It is about whether a president can treat government records as personal property — deciding for himself what will be preserved, what will be disclosed, and what can simply be destroyed," she said.

"The court's decision helps ensure that the American people — not the White House — retain ownership over the historical record of the presidency. 

On and off-the-record

This is not the first time Mr Trump has attempted to circumvent long-held record-keeping conventions.

After his first presidential term, the US National Archives retrieved 15 boxes of records that were improperly taken from the White House to his Florida home, Mar-a-Lago.

The NARA retrieved the documents more than a year past the deadline by which Mr Trump should have handed them over. It referred the matter to the US Justice Department, which led to an FBI raid at Mar-a-Lago.

The FBI seized 33 boxes containing more than 100 classified records during its search of Mar-a-Lago and found boxes in a ballroom, a bathroom and classified documents stashed in office drawers.

During Mr Trump's first term, he would reportedly rip up documents and, at times, flush the pieces down toilets.

White House aides collected some of the ripped-up pieces of paper and taped them back together.

In June 2023, Mr Trump was indicted on 37 charges relating to his handling of classified documents after his first term by the office of special counsel Jack Smith. He was subsequently indicted on three more charges and arraigned, where he pleaded not guilty.

According to that indictment, scores of documents sent to Mar-a-Lago included sensitive US military secrets and material from the Pentagon, the CIA and the National Security Agency.

But the pro-Trump Judge Aileen Cannon dismissed the case in July 2024, ruling that the appointment of Mr Smith had been unconstitutional.

Mr Smith’s office appealed that decision but prosecutors dropped the case following Mr Trump's election win in November 2024. The FBI then handed back the boxes of documents it had seized.

CREW said in a statement that Mr Trump's first term included "numerous record-keeping scandals, culminating in multiple indictments for his handling of classified documents after leaving office".

"It is clear that the Trump administration wishes it could return the country to a pre-Watergate status quo in which records of the president's and White House's official conduct are the private property of the president — records he can destroy, sell, or withhold from the public at will — but that is not reality," the statement said.

The White House said in an email to staff that it intends to appeal.