Acting quickly, groups that seek to protect the nation’s documentary history from being destroyed have asked a federal judge to block the Trump Administration’s claim that the President owns and controls all White House records.
A lawsuit by a historians’ group and a civic advocacy organization was filed Monday in federal court in Washington, D.C., just five days after a high-level government legal officer argued that the Presidential Records Act of 1978 is unconstitutional and can no longer be enforced against the President, the Vice President or other officials. If that claim survives legal challenge, Trump and future Presidents would be free to keep, use or do away with official records as they wished.
The lawsuit sought to add urgency to the challenge, telling U.S. District Judge Beryl A. Howell that the White House staff has already started to carry out the advice that the Act is no longer in effect.
“This case,” the document’s first page declared, “is about the preservation of records that document our nation’s history, and whether the American people are able to access and learn from that history.”
The 46-page lawsuit claims seven separate violations of the Constitution and federal laws, and asks for the following action by Judge Howell:
· Clearly uphold the constitutionality of the Records Act.
· Order Executive Branch officials to obey that law and take steps to create and protect White House records while Trump remains in office.
· Order those officials to notify the court of any instance in which Trump has already destroyed any official records.
· Once Trump has left the Presidency, order him not to destroy or illegally mishandle any records.
· Block officials from relying on the new advice that they need not obey the Act.
Most of the requests are aimed at officials other than Trump, because of the long-standing doctrine – first declared by the Supreme Court in an 1867 decision (Mississippi v. Johnson) – that courts may not directly issue orders to the President on how he conducts his official duties. That “separation of powers” doctrine, however, does not apply to any lower official working for or with the President.
The new legal controversy focuses on federal civil, not criminal, law. Trump and all other Presidents, past and future, do have broad immunity to criminal prosecution, under a highly controversial Supreme Court ruling in July 2024.
The new lawsuit contended that President Trump and his aides, while sometimes abiding by the Records Act, have also violated it repeatedly. With that history, and adding the new advice that the Act is unconstitutional, the two groups cited “a substantial likelihood that President Trump will keep or destroy numerous records after his term in office.” Those materials, it added, are legally required to be handed over to the national Archivist – the national government’s official record-keeper.
Among other claims of wrongdoing, the lawsuit accused the current Archivist of taking steps to block public release of some records from Trump’s first term in the White House and from other prior presidential administrations.
The groups who sued are the American Historical Association, founded in 1884 and now having more than 10,000 historians as members, and American Oversight, a private advocacy group that seeks to promote government transparency by repeatedly seeking disclosure of government documents and information under the federal Freedom of Information Act. It currently is suing the Administration, in a case already before Judge Howell, over some of those data requests. It is also suing in federal courts to try to assure public access to the records of the now-abandoned criminal charges against Trump for mishandling secret government documents at his home in Mar-a-Lago after he ended his first term.
As Judge Howell begins moving the new case forward, one of the first key questions she must decide is whether the two organizations had a legal right to file their lawsuit – an issue that depends upon whether those groups can show that they will be harmed legally by the steps the Trump Administration is taking now or threatens to take with presidential records. Potential injury must be shown because, constitutionally, federal courts have no authority to issue mere legal advice, when there is no “live” legal dispute.
The new records controversy is far from novel in U.S. history. Presidents and Congress have been engaged since the time of President George Washington in disagreements over access to presidential documents. Moreover, the Supreme Court in a famous ruling in 1977 upheld the constitutionality of a predecessor law to the Presidential Records Act when challenged by former President Richard Nixon. That Act, the new lawsuit contended, is little different in substance from the more recent version that the Trump Administration now considers to be unconstitutional.
There is no formal deadline for Judge Howell to decide even preliminary issues, but the dispute is unfolding rapidly in Washington so the jurist will likely move with dispatch. She has a reputation as one of the more liberal judges on the federal bench in Washington.
Ultimately, the new records controversy appears destined for final review by the Supreme Court, where a basic question will be how the current sitting Justices regard the ruling by their predecessors in 1977 in the Nixon records dispute. None of the Justices then on the Court survives, and the current Court has a far more conservative majority that is highly sympathetic to the Presidency.
