The Trump Administration Records Retention Lawsuit: DOGE and Signal

The Trump administration records retention lawsuit is a federal court challenge brought in April 2026 by the American Historical Association and American Oversight after the Justice Department declared the Presidential Records Act unconstitutional and told the White House it no longer had to follow the law. On May 20, 2026, U.S. District Judge John D. Bates granted a preliminary injunction ordering White House offices and senior advisers to preserve presidential records while the case proceeds.¹

What Set Off the Lawsuit

On April 1, 2026, Assistant Attorney General T. Elliot Gaiser, who heads the Justice Department’s Office of Legal Counsel, issued a 52-page memorandum concluding that the Presidential Records Act is unconstitutional “in its entirety” and advising President Trump that he “need not further comply with its dictates.”²

The memo rested on two arguments. It said Congress cannot regulate the presidency the way it regulates agencies it created by statute, and that preserving records “merely for the sake of posterity” is not a valid legislative purpose. It also argued the Act violates the separation of powers by “aggrandizing the Legislative Branch at the expense of the constitutional independence and autonomy of the Executive.”³ The opinion called the Supreme Court’s 1977 ruling in Nixon v. Administrator of General Services, which upheld a predecessor statute, not just distinguishable but “wrong.”²

Executive branch agencies treat OLC opinions as binding guidance. The day after the memo was released, the administration adopted a new recordkeeping policy that treated presidential records as private property and told staff they were no longer required to follow the Act’s preservation mandates.⁴

Former OLC officials from both parties pushed back hard. Christopher Fonzone, who ran the office under President Biden, called the opinion’s disregard for Supreme Court precedent “astonishing” and said it effectively “frees Executive Branch officials to destroy presidential records.”⁵ Marty Lederman, a former deputy assistant attorney general in the office, called the memo “what might be the most unprofessional and embarrassing opinion OLC has written in recent years.” Critics also noted the opinion never addressed the Constitution’s Property Clause, which the Justice Department itself had cited to defend the predecessor statute in the Nixon case.⁶

What the Presidential Records Act Requires

The Presidential Records Act of 1978, passed after Watergate, ended the longstanding practice of treating a president’s papers as personal property. Before the law took effect in 1981, presidents owned their records outright and could destroy them, sell them, or take them home. The Act declares public ownership of presidential records, requires the president and White House staff to preserve records of official business, bars the destruction of records without written input from the Archivist of the United States, and mandates that all presidential records transfer to the National Archives when a president leaves office.⁷

Public access to those records opens under the Freedom of Information Act five years after an administration ends, though a former president may restrict certain categories for up to twelve years. A 2014 amendment addressed electronic records, including a rule that any official business conducted on personal email or messaging accounts must be copied to an official government account within 20 days.⁷

Who Sued and What They Asked For

The American Historical Association and American Oversight filed suit on April 7, 2026, in the U.S. District Court for the District of Columbia as American Historical Association v. Trump, case number 1:26-cv-01169.⁸ The complaint asked the court for three things: a declaration that the Presidential Records Act is constitutional, an order blocking the administration from relying on the OLC memo, and an injunction compelling the White House to preserve and eventually release presidential records as the law requires.⁹

The plaintiffs argued the administration’s position amounted to “nullifying a law duly enacted by Congress” based on reasoning that “contravenes a decision of the Supreme Court,” violating the separation of powers “twice over.”¹⁰ Without a court order, they warned, records including communications on personal devices and encrypted messaging platforms could be “controlled, concealed, or even destroyed” before the public ever sees them.⁸

Lead counsel for the plaintiffs is Daniel Jacobson, a former general counsel at the Office of Management and Budget and the White House Office of Administration, joined by Loree Stark of American Oversight.⁹ Chioma Chukwu, executive director of American Oversight, said the administration’s position “threatens to concentrate power in the presidency” and would block public access to hundreds of millions of records, including over 700 million White House emails.⁸

A second lawsuit raising similar claims, Freedom of the Press Foundation v. Trump (No. 1:26-cv-01402), was filed on April 24, 2026, by Citizens for Responsibility and Ethics in Washington and the Freedom of the Press Foundation. Judge Bates was assigned both cases and consolidated the preliminary injunction hearings, which took place on May 13, 2026.¹¹

How the Court Ruled

Judge Bates issued a 54-page opinion on May 20, 2026, granting a preliminary injunction. He found that the Presidential Records Act is “most likely constitutional” and that the plaintiffs had shown a “substantial risk” the White House would not comply with it.¹

Bates grounded his analysis in the Property Clause, which gives Congress authority over federal property — the very provision the OLC memo had not addressed. He wrote that “the original public meaning of the text of the Constitution, canons of interpretation, Supreme Court precedent, general principles of property law, and almost 50 years of practice confirm that Congress has the enumerated power to regulate presidential records under the Property Clause.” He added: “While the presidency is a singularly important institution, that gravity does not free it from modest constraint.” He also noted the administration’s current stance had not been shared by any previous president, including Trump during his first term.¹²

What the Injunction Requires

The order took effect at 9 a.m. on May 26, 2026, and applies to the White House Office, the National Security Council, the U.S. DOGE Service, and all advisers to the president. It requires:

Full compliance with the Presidential Records Act by all covered offices and employees in preserving presidential and vice-presidential records.
A ban on creating or sending official records via text, ephemeral messaging apps, or other nonofficial accounts without copying the content to an official government account.
Establishment or reestablishment of records retention policies that comply with the Act.
Circulation of the order to all covered employees and a notice filed with the court by May 28, 2026, detailing compliance steps.¹³

The injunction does not directly order President Trump or Vice President J.D. Vance to comply, because the court said it cannot direct how they carry out their official duties. It does require their aides to preserve any records transmitted to them by the president or vice president.¹⁴ The White House has indicated it will appeal.¹⁵

Why DOGE Was Named in the Order

The Department of Government Efficiency was created by executive order in January 2025 when the U.S. Digital Service was renamed and moved into the Executive Office of the President. Because of that placement, the administration argued DOGE is subject to the Presidential Records Act rather than the Federal Records Act or FOIA, meaning its records would stay sealed for at least five years after the administration ends. But the administration was simultaneously arguing the PRA itself is unconstitutional, which critics said created a transparency gap on both ends: DOGE’s records were shielded from FOIA by its placement and from the PRA by the OLC opinion.¹⁶

DOGE had already drawn separate litigation over its use of auto-deleting messaging apps like Signal and later adopted a records retention policy requiring employees to capture work-related messages from personal devices.¹⁶

The Signal Backdrop

The lawsuit arrived against a run of controversies over encrypted and disappearing-message platforms used for official business. In March 2025, The Atlantic editor Jeffrey Goldberg was inadvertently added to a Signal group chat in which senior national security officials, including Defense Secretary Pete Hegseth and National Security Adviser Mike Waltz, discussed military strikes against Houthi rebels in Yemen. The chat was configured to automatically delete messages after four weeks.¹⁷

American Oversight filed a separate lawsuit over that incident, arguing the use of a commercial app with auto-delete features for official business violated the Federal Records Act. In June 2025, U.S. Judge James Boasberg issued a preliminary injunction ordering national security officials to notify the acting archivist about messages at risk of deletion, though he declined to order recovery of messages already lost.¹⁸ Federal law requires the preservation of official communications regardless of platform; the administration’s position that the Presidential Records Act is unconstitutional would strip the enforcement mechanism for White House staff.

What Happens Next

The preliminary injunction remains in effect while the case proceeds on the merits. The White House has signaled it will appeal, which would send the question to the U.S. Court of Appeals for the D.C. Circuit and potentially back to the Supreme Court, whose Nixon precedent the OLC opinion squarely attacked.¹⁵ In the meantime, covered White House offices are under a court order to preserve records, keep official business off ephemeral messaging apps, and report their compliance to the court.

1
CBS News. Presidential Records Act Judge Rules Against White House
2
Office of Legal Counsel, U.S. Department of Justice. Memorandum Opinion on the Presidential Records Act
3
ABC News. DOJ Rejecting Decades of Law on Trump Presidential Records
4
The New York Times. Judge Orders White House to Preserve Text Messages
5
Law & Crime. Biden DOJ Lawyer Took Admins Astonishing Legal Conclusion to the Woodshed
6
Lawfare. A New Low: Presidential Records and the Role of OLC
7
National Archives. Presidential Records Act of 1978
8
American Oversight. American Oversight and Historians Sue to Block Trumps Effort to Evade Presidential Records Law
9
The Daily Record. Historians, Watchdog Sue Trump Over Presidential Records Law
10
ABC News. Historians Sue Over Trumps Attempt to Ignore Presidential Records Act
11
Civil Rights Litigation Clearinghouse. Freedom of the Press Foundation v. Trump
12
ABC News. Judge Orders Trump Administration to Comply With Presidential Records Act
13
New York Almanack. Trump Presidential Records Act
14
FindLaw. Judge Orders White House Staff to Comply With Record Retention Law
15
The Washington Post. Federal Judge Orders White House Offices to Comply With Presidential Records Act
16
American Oversight. Everything We Know About DOGE and Why We Dont Know More
17
FactCheck.org. Was the Signal Chat Illegal
18
NPR. Signal Ruling on Hegseth and American Oversight