Historians suing Trump administration say National Archives won’t commit to preserving presidential records during lawsuit

By Tierney Sneed, CNN

(CNN) — The historians who are suing over the Trump administration’s eschewal of a Watergate-era records retention law for presidential documents said Tuesday that the National Archives won’t agree not to destroy those records while their case is litigated.

The American Historical Association is seeking an emergency court order in a lawsuit it filed last week in the wake of a Justice Department memo that said the Presidential Records Act is unconstitutional.

The Presidential Records Act requires presidents and their staff to preserve White House records and turn those records over to the National Archives at the end of their administrations.

The law was instrumental in the chain of events that led to President Donald Trump’s prosecution for allegedly mishandling classified documents that he took from the White House at the end of his first term.

Earlier this month, a Justice Department office that gives legal advice to the executive branch said it had concluded the law was unconstitutional. The opinion, from the Justice Department Office of Legal Counsel, told the president he was no longer obligated to comply with it.

In filings Tuesday, the historians — who are being joined in the case by the left-leaning government transparency group American Oversight — said that, absent a court intervention, presidential records they intend to use for their research “will be irretrievably lost.”

“DOJ has no authority to direct the President to ignore a constitutionally-compliant statute, and its instruction that the President may do so violates the separation of powers,” the challengers wrote.

A lawyer for the plaintiffs had reached out to the Justice Department seeking assurances that presidential records wouldn’t be destroyed while the case played out, according to the filings. The Justice Department said that it could not agree to those stipulations because it was “not yet in a position to make additional representations about the Government’s approach to those issues,” according to an email exchange included in the filings.

Specifically, the challengers had asked the National Archives to agree that it would not destroy records it maintains under the law. They also wanted an agreement that the Archives would continue to make presidential documents from prior administrations — including the first Trump term — available for public records request, as contemplated by the Presidential Records Act.

They asked for assurances that White House staff will preserve documents covered under the law and that administration personnel would also follow the law’s requirements for preserving communications sent on messaging apps like Signal and WhatsApp.

Neither the Justice Department nor the National Archives immediately responded to CNN request for comment. The White House referred CNN to the DOJ on the latest filings. The White House previously said that Trump “is committed to preserving records from his historic Administration and he will maintain a rigorous records retention program.”

“Staff should retain materials that reflect the performance of their duties, establish an administrative record, are of historical significance, or may be needed in litigation,” White House spokesperson Abigail Jackson said in an April 3 statement that stopped short of committing that those documents would eventually be handed over to the National Archives.

“The administration is already discussing with NARA how to move forward,” she said, referring to the National Archives.

The classified documents prosecution against Trump was shut down after he won reelection in 2024, and while a ruling dismissing the charges was still on appeal. Trump’s bitter feelings towards the National Archives apparently continued, and he fired the Archivist that in place when he returned to the White House last year, even though she did not take the role until after the classified documents investigation.

The historians are now seeking a preliminary court order that would block the destruction of presidential records and that would require White House staff to preserve on official channels any communications related to their duties that are sent on encrypted messaging apps.

US District Judge Beryl Howell quickly ordered that the parties come up with a briefing schedule for her to consider the request.

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