White House tells court it’s preserving presidential records even though DOJ said law is unconstitutional

By Tierney Sneed, CNN

(CNN) — White House staff are still following the “preservation” mandates of the Presidential Records Act, the Justice Department told a federal court as it pushes back on a new lawsuit challenging the Trump administration’s disavowal of a Watergate-era documents law.

The filings made public the White House’s official approach to records retention now that the Justice Department – via an opinion from the department Office of Legal Counsel – told President Donald Trump that he no longer had to comply with the Presidential Records Act.

White House Counsel David Warrington issued a memo on April 2, the day after the OLC opinion was published, that was released publicly with Tuesday’s court filings.

The law requires that presidents and their staffs preserve records related to government activity, and that those records be turned over to the National Archives at the end of each administration – with provisions of the law eventually making some of those documents available to the public.

The new White House memo did not address what steps President Trump or Vice President JD Vance should take to preserve records, nor did it lay out plans to ultimately turn White House documents over to the Archives.

Critics have raised concerns that Trump will take with him when he leaves office the same kinds of highly sensitive government records that he brought to Mar-a-Lago after his first administration, leading to charges against Trump by special counsel Jack Smith for allegedly mishandling classified documents.

Acting attorney general Todd Blanche – who represented Trump in the criminal case – rejected the idea that the OLC opinion would undermine government transparency.

“There is no dispute that this administration in just 14 months has been a lot more transparent than the last administration or in any administration,” Blanche said in response to a question from CNN’s Paula Reid at a Tuesday press conference.

“So if critics are suggesting that that somehow we’re not being transparent, I don’t find that credible in any way, shape or form,” Blanche added.

In the new documents-preservation memo, Warrington told White House staff that, even though the administration no longer considers itself bound by the Presidential Records Act, they should “preserve any material related to the performance of their duties,” while noting those records might be needed in future litigation.

Physical documents and work-related emails sent via official White House accounts should be saved, Warrington said, but he also made a distinction for when staff members are required to retain text messages.

“Text messages reflecting personal conversations, workplace gossip, ministerial tasks or other workplace minutiae” need not be preserved, he said. But staff must save messages “when they are the sole record of official decision-making, government action, or contain unique information not available elsewhere.”

The American Historical Association and American Oversight, a left-leaning government watchdog group, are seeking an emergency court order that would require the preservation of presidential records and that would make clear the PRA’s demands apply to messaging apps, including encrypted services like WhatsApp and Signal.

The Justice Department laid out several reasons the request should be denied, including with an argument that the historians are not currently facing imminent harm because the White House is still following a policy “consistent” with the Presidential Record Act. Additionally, the Archives is continuing to preserve the presidential records it already holds, DOJ said, pointing to a declaration from an Archives employee.

“Plaintiffs’ claim to irreparable harm hinges on the possibility of indiscriminate document destruction … but the record is entirely to the contrary,” the administration said.

Senior US District Judge John Bates has scheduled a hearing for May 5.

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