We Sued and the Court Ordered Him to Stop

Added: 2026-05-12

[00:00:00]We are suing the government again. This time to prevent Trump from destroying the national security documents and other documents that he stole away to Mara Lago and to make sure that he follows the Presidential Records Act.

[00:00:12]Jeez, can a lawyer get a break? And huge news. We already got an incredible victory that's going to reverberate across the entire country. Yes, on April 1st, Trump's office of legal counsel served up a memo so laughably bad that the internet assumed it was an April Fool's prank. Trump's concierely over at the OLC declared that the Presidential Records Act is now straight up unconstitutional.

[00:00:32]In its 45 years of existence, no president has ever explicitly challenged the constitutionality of the P. But in its April Fool's memo, OLC unilaterally claimed to overrule the Supreme Court president, negated decades of legal policies and traditions, and declared that now Trump owns all of the White House documents. And of course, the upshot is no one in the White House has to preserve documents or turn them over after the presidency ends. He can straight up destroy every single document if he wants to.

[00:00:59]>> I think we've been the most transparent administration in the history of our country.

[00:01:03]>> Now, you might be wondering, why would the most transparent administration in history try to argue it has the right to destroy presidential records? What could they possibly have to hide? Well, we were wondering the same thing, and we were a little worried that they might accidentally delete or disappear some important records. So, we did what lawyers do best. We filed a motion and asked a judge to intervene. And guess what the judge just signed? Allow me to read. Uh, it is hereby ordered that defendant, the National Archives and Records Administration, uh, shall preserve all records of President Trump's first administration in defendants custody. And further ordered that defendant shall also apply this order to any records of President Trump's first administration, of which defendant obtains custody after the date of this order. And further ordered that this order shall expire when all four above caption cases have terminated. So ordered. Theodore Chung, United States District Judge. So, the judge ordered NAR to preserve all records from Trump's first administration while this case is ongoing, which means no shredding, no accidental deletions, no disappearing documents. But this is just the beginning. In a few minutes, I'll be joined by our attorney, Kell McClanahan, to explain what we filed, why we filed it, and how we forced the current Trump administration to preserve the records that they're actively trying to destroy.

[00:02:15]But before we get into it, in addition to trying to destroy the PRA, you might have also heard that the Trump administration is trying to destroy your ability to pay off your student loans at low rates. Now, if your private student loans are in default or you're struggling with payments, the sponsor of this portion of today's video, Y Refi, is an excellent refinancing solution.

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[00:03:50]>> And they'll stop if we take this other.

[00:03:55]>> Now, this was back when Congress actually legislated. And when they heard about this, they were so appalled that they passed a bill specifically targeted at Nixon and his records. In 1974, Congress passed the precursor to the Presidential Records Act, called the Presidential Recordings and Materials Preservation Act. The day after President Ford signed the act, Nixon filed a lawsuit arguing that the Presidential Records and Materials Preservation Act, was unconstitutional.

[00:04:16]He claimed that the act violated the separation of powers and executive privilege because it quote encroaches upon the presidential prerogative to control internal operations of the presidential office and therefore offends the autonomy of the executive branch. And the court concluded that the act didn't meaningfully impede the president because the executive branch through the administrator of general services maintained control over the president's documents and Nixon's successor, President Ford, had essentially waved the executive branch's separation of powers argument by signing the act into law. And the court also rejected Nixon's arguments about executive privilege. Executive privilege is the doctrine that allows the executive to withhold some documents from outside parties, including the other two branches of the government and the public. And the court disagreed, saying that there were important policy reasons why executive privilege quote survives the individual president's tenure. Because executive privilege gives White House staff the ability to candidly discuss issues, it is quote not for the benefit of the president as an individual, but for the benefit of the republic. Now, the presidential records and materials preservation act was designed to only apply to Nixon. But now that the Supreme Court has given its blessing, Congress decided to apply the same principles to all future presidents. So in 1978, Congress passed the Presidential Records Act at 44 USC section 22, which established that official White House records, including records of the president, vice president, and a handful of other White House offices, are public property. The president quote shall take all such steps as may be necessary to preserve official records, and when the president leaves office, they must hand over their records to the National Archives. Now, the National Archives, an executive branch agency, then preserves records and makes them available to the public.

[00:05:45]The law allows temporary up to 12-year restrictions for things like national security or confidential advice. And the National Archives regulation at 36 CFR 1270 creates a formal process to protect privileged materials. When the archist decides to publicly disclose presidential records for the first time, they have to notify the current and former president. Either the current or former president can then assert privileges. And if the current president asserts the privilege or both presidents agree that it applies, the archist has to abide by that. And if only the former president asserts privilege and the current president doesn't back that up, then the materials are publicly disclosed unless the former president can get a court order upholding the privilege. And the P also includes a specific carveout for privilege in 44 USC section 2204C2 which states that quote nothing in this act shall be construed to confirm, limit or expand any constitutionally based privilege which may be available to an incumbent or former president. So for all important constitutional purposes, the P passes the test set in Nixon versus Administrator of General Services. Like the Presidential Records and Materials Preservation Act before it, the P gives custody of presidential records to another executive branch agency, the National Archives. And it respects executive privilege because it allows the current president to continue to assert executive privilege even over documents that had belonged to the prior president. And it also explicitly preserves the former president's potential privilege claims. If the current president doesn't uphold that privilege claim, the foreign president can go to court and get an order preventing release and the archavist must respect that. But most importantly, the documents have to be preserved either way. For nearly 50 years, through eight administrations, including Trump's first term, no one challenged the Presidential Records Act. Sure, some presidents, including Trump, tried to cut corners with records preservation, but no one dared to claim that the act itself was unconstitutional until April Fool's Day 2026. Now, we've talked a lot about the Office of Legal Counsel or OLC on this channel. It is the branch of the DOJ that provides authoritative legal advice to the president and executive agencies. It reviews executive orders, regulations, and other significant actions to ensure that they are consistent with the Constitution and federal law. Its formal opinions are not law, but are treated within the executive branch as binding interpretations unless overruled by the attorney general or the president. And the OLC used to be an extremely prestigious place to work and could and would push back on executive overreach.

[00:07:54]Maybe not all the time, but definitely sometimes. Though the OLC is not and has never been a neutral arbiter of the law, they've been criticized as being designed to spit out legal justifications for the president's decisions. They are, as former OLC leader Jack Goldmith put it, quote, famously promiscuously permissive. And over the years, much to its shame, OLC has blessed torture, warrantless wiretapping, and boat strikes on disabled crafts. They've claimed that wars aren't actually wars. They've decided that agency heads can stop legal whistleblowers from blowing the whistle.

[00:08:24]And they've justified targeted drone strikes on US citizens abroad. But compliance with past presidents agendas is nothing compared to the OLC of today.

[00:08:32]To the extent the office hasn't been completely sidelined, it has been increasingly filled with absolute political hacks. To which the April 1st memo opened with the bold declaration that quote, "The P is unconstitutional for two independent but interlocking reasons. It exceeds Congress's enumerated and implied powers, and it arrandizes the legislative branch at the expense of the constitutional independence and autonomy of the executive. OLC then spent many, many pages laying out his main argument that until the Presidential Recordings and Materials Preservation Act was passed, presidential records were always subject to the whims of presidents. Now, we always used to do it this way is not real legal argument, and it's not particularly persuasive. We used to do a lot of things that are now considered terrible and unlawful. But since the most relevant Supreme Court president, Nixon versus Administrator of General Services, directly contradicts OLC's conclusion here, the OLC attorneys had to resort to whatever anecdotal historical president they could find. So according to OLC, quote, "Over the first two centuries of the American experiment in self-governance, presidents owned and controlled presidential papers, and Congress obtained such papers through political negotiation and interbranch accommodation rather than as a matter of right. So essentially, Congress could ask for presidential papers and depending on the mood of the president, he could either turn over some of the papers, all the papers, or none of the papers. Now, OLC notes that during the first 200 years of US history, quote, "Congress routinely bargained for and purchase presidential papers for fancy sums." So OLC's vision is for Congress to pay huge amounts of money to access presidential records. That is a pretty convenient way to monetize the presidency, I guess. And I wonder if Congress could pay in Beamcoin. OLC admitted though that there was a cost to this disorganized approach. Quote, there is lost to public records some of the most interesting documents of governmental origin bearing on the history of an administration. But according to OLC, the important thing is that the executive power was preserved.

[00:10:17]And OLC concluded that quote, for these reasons, the P is unconstitutional and the president need not further comply with its dictates, which conveniently gives this administration permission to keep storing documents in the bathroom of Mara Lago or just to destroy them entirely. Now, we think it's unlikely that OLC's legal arguments will hold up to any scrutiny, even under this Supreme Court, but presidents haven't historically taken document preservation and management very seriously. So, I think we can be forgiven for assuming that the president is already getting out the shredder and the burn bin. And hey, speaking of preserving records, police body cam footage has now become one of the most popular genres of entertainment on YouTube. And Lindsay Ellis made a fascinating expose about how this is reshaping the public's relationship with law enforcement. It's definitely worth checking out, but the only place you can see it is Nebula, who sponsored this portion of today's video.

[00:11:02]Nebula is a streaming service where you can watch tons of exclusive content from us and hundreds of your favorite creators, ad free and early. In fact, every video we make contains additional legal analysis on Nebula that you can't find anywhere else. And if you use my link or code, you can get 50% off an annual subscription. So that's a year's worth of the best content for only $30, or you can get 40% off a lifetime of Nebula. You can pay once for $300 and then never again. It truly is the best deal of all. Either way, click or scan now to continue watching Legal Eagle on Nebula or I'll see you in court. So, on April 13th, we filed a motion to try to stop him. Now, sometimes even lawyers need lawyers and today I'm joined by our lawyer, Kell Mlanahan of National Security Counselors.

[00:11:40]>> Uh, happy to be here as always.

[00:11:41]>> So, Kell, why did we file suit and why are we seeking these particular documents? Well, as events have demonstrated, what happened at Mara Lago with the classified and national defense records is of a significant amount of public interest. So we went and after the five years had passed, after which you can ask for presidential records through Foya, we filed a bunch of foyer requests, including one for all of the records that were returned from Mara Lago or seized by the FBI when they searched Mara Lago because we were afraid that if they did not get requested and if they did not get into the public arena, they would vanish into a memory hole of Donald Trump's creation.

[00:12:21]>> Hey guys, future me here to explain the order that we actually got from the court. Now, as Kell explained, we asked the court to protect a set of records, the ones sent back to Mara Lago. Now, rather than fight this out, the government agreed to our proposed order preserving all the documents while we fight out the rest of the case. And the court issued a sweeping order preserving all records from Trump's first administration in the custody of the National Archives and even any records they receive going forward. Now, to be clear, this doesn't mean that we're going to get the documents that we're requesting. Uh, but it is a first step.

[00:12:53]And of course, everyone was worried that the administration would just simply destroy all of the records. It seems like that was what they were trying to do. Of course, it's one thing to take an aggressive interpretation of the law, but it is an entirely other thing to actively go against a court order, ordering you to do something extremely clear. So, a preservation order is a necessary first step. It just means that they have to keep everything intact while the case plays out. No deleting, no shredding, and no, we couldn't find it. It freezes the evidence in place while the case plays out. Yeah, that sounds bad. So, what letter did you file with the court and why?

[00:13:26]>> Well, in light of this OLC opinion, we became concerned that Trump or the government would rely on it to destroy presidential records that we had requested on the theory that they were no longer bound by the P because it was unconstitutional. We specifically called out the records that Trump and the White House communications director said had been returned to Mara Lago and said that we needed the judge to issue a preservation order that would require them not to destroy the records that we wanted. Now, normally we would use a motion to do this, but due to this judge's standing order, we had to write a letter notice summarizing the matter, and we will file a motion later if it becomes necessary. Now, in our letter, you talk about how the DOJ's April 1st memorandum shattered the presumption of regularity. What does that term mean?

[00:14:18]Why is it important?

[00:14:20]>> So, you hear this a lot. The presumption of regularity, also called the presumption of good faith, is a doctrine in federal court that says that in the absence of contrary evidence, a federal court has to presume that a federal agency or official operated legally. The idea is basically that once you're in the public trust and once you're working for the government, you would never lie because it would be against the public interest. As you can tell from the tone of voice, it's always been a little iffy on the edges. But in the past year, courts have really started to question it or just refuse to apply it outright for obvious reasons. In this case, I argue that OLC's opinion, saying that Trump can do whatever he wants because the P is now unlegal or something means that the court simply can't take it for granted that these records won't be destroyed because of the P. In fact, in other cases currently being litigated over things like Doge, the agencies have told judges that they don't need preservation orders because they're bound by the P and therefore there's nothing for the judge to do here. That doesn't work anymore.

[00:15:30]>> Well, what happened after you wrote that letter and how did the court react?

[00:15:33]>> Well, that's funny. So, the judge called us in for a status conference to talk about it, and a few interesting things happened. First, the DOJ lawyer said that it was her understanding that the National Archives had never even seen the records that were seized from Mara Lago, although she was pretty careful to avoid stating that as an absolute fact.

[00:15:56]Second, as a result of that and the confusion that came from it, the judge ordered them to file a sworn declaration by April 22nd explaining exactly what happened to the records that were seized from Mara Lago by the FBI and what exactly was returned, which I'm looking really forward to reading.

[00:16:15]>> I think I know the answer, but what do you think of the OLC's legal analysis of the Presidential Records Act? How far out on a limb did OLC go here?

[00:16:23]>> Pretty far. OLC arguably took its advocacy for secrecy even further than Nixon did because OLC claimed that it's no longer just privileged records that need to be shielded from scrutiny. It's all presidential records because they are special and important presidential stuff. OLC even had the tenacity, if you can believe it, to argue that there is no valid congressional purpose that justifies the P. Period. not oversight, not historical preservation, not the right of the people to understand how their government works, but the congressional purposes of the P's predecessor had already been debated in court and accepted in Nixon versus Administrator of General Services. The Nent court stated that the legislative history of the act clearly reveals that among other purposes, Congress acted to establish regular procedures to deal with the perceived need to preserve the materials for legitimate historical and governmental purposes. An incumbent president should not be dependent on happen stance or the whim of a prior president when he seeks access to records of past decisions that define or channel current governmental obligations. In layman's terms, the Supreme Court basically said, "Look, these are public records. These belong to the presidency, not Jimmy Carter or Reagan or Nixon or Trump or anybody else. And presidential records aren't just for the people. It's also for the president. President Trump needs to be able to see what President Biden did.

[00:18:00]President Biden needs to see what President Reagan or Obama or Trump did.

[00:18:06]If you allow these records to be destroyed or kept from the public view by an individual president, then you destroy the ability of the current president to basically govern based on anything that happened before. And that's just one problem here. The Nixon president is pretty problematic for OLC in other ways. So, the memo just ignores it, except for occasionally they'll cherrypick some dicta here or there.

[00:18:37]Instead, OLC compared the P to a recent Supreme Court case that dealt with congressional subpoenas for presidential information, and I can give you three guesses. Well, I'll give you one guess which president took the case against congressional subpoenas to the Supreme Court. But Trump versus Mazars was again a case about congressional subpoenas, not a case about a public disclosure statute that had been lawfully passed by Congress and signed by the president.

[00:19:04]>> What do you make of OLC's argument that separation of powers principles give the president ultimate control such that Congress can't override that authority by statute because of the Constitution?

[00:19:14]>> So that's the most fascinating part here. Even if we credit OLC's arguments about inter branch disputes over records on their own terms, they miss one very important point. OLC spends the vast majority of its opinion discussing in exhaustive detail all the reasons that Congress can't just order the president to give it records. They talk about the need for a valid legislative purpose.

[00:19:39]They literally use the phrase legislative purpose 28 times in a 52page memo. They talked about arandizing Congress at the expense of the helpless president. They talk about how Congress can't just get records from the president to satisfy its curiosity.

[00:19:56]Every time Congress demands records from the president, OLC says it has to be able to justify the demand in terms of Congress's constitutional responsibilities. And creating a record for posterity isn't a valid legislative purpose, OLC says. But here's the most basic fundamental flaw with OLC's argument. These arguments all explain the legal issues pretty well. When one branch demands records from another branch, they are arguments about Congress wanting records for its own use from the president. That's how interbranch disputes work. But the P was not an interbranch dispute. It was not Congress demanding records from the president for its own use. It was a statute passed by Congress and signed by the president. In fact, in the Nixon case, the Supreme Court held that it was very relevant that President Gerald Ford signed the precursor statute because they considered that to be a waiver of the separation of powers arguments. It's just as relevant that President Carter signed the P. And while some presidents include signing statements when they want to object to some part of a statute on constitutional grounds, saying something like, "I interpret this statute as not to impinge my article 2 authority to do something I want to do."

[00:21:24]President Carter did not. He celebrated the law, writing, "I am especially pleased to sign the Presidential Records Act of 1978, which will ensure that presidential papers remain public property after the expiration of a president's term. The Presidential Records Act of 1978 carries forward my commitment to making sure that our government is not above the law and merits the trust of the people from whom a president and his government derived their power. And he thanked the members of Congress who wrote it by name.

[00:22:04]According to the Supreme Court's own logic, that signature waved any separation of powers concerned. just as President Ford's signature did so four years earlier. And if you think about it, this is the way the law has to work as a practical matter. If Congress could only use a properly signed statute to compel the executive branch to publicly release information that it could unilaterally demand with a subpoena, the Freedom of Information Act or FOYA would be unconstitutional. The Privacy Act, which requires agencies to release the information about US citizens to them upon request, would be unconstitutional.

[00:22:44]The Whistleblower Protection Act, which allows agency employees to publicly blow the whistle on waste, fraud, and abuse, would be unconstitutional.

[00:22:54]Every single forward-looking accountability, transparency, and good government statute would be unconstitutional if it cannot be tied to a specific valid legislative purpose.

[00:23:06]And while this may be the ultimate goal of the Trump administration, it is not and cannot be the law as it is written now.

[00:23:14]>> So, what are the next steps for this lawsuit? Our lawsuit suing over all the John Bolton documents is still ongoing four years later. and our lawsuit getting uh Jack Smith's stocks are still going. Is there anything that's going to happen in the short term?

[00:23:28]>> Well, one of the things that came up in the status conference I talked about was a very interesting prospect. As it so happens, the judge is allowing discovery in this case, which is pretty unusual for a foye case, which means we get to subpoena Donald J. Trump personal private citizen and the Mara Lago Club personal private business and tell them that we want their copies of all the records that were returned to them by the government and all of their correspondence with the government about said return. And really, really, really, really cool, that information, what comes out of those subpoenas may actually be more illuminating about what happened in this case than any records we actually end up getting from the lawsuit. So, it's going to be fun.

[00:24:31]>> Yeah, that sounds fun. Thanks for the breakdown.

[00:24:33]>> And thank you for having me. I always enjoy talking about the mischief that you and I can get into.

[00:24:38]>> Thanks, Kell. Now, as I said, Kell runs the firm National Security Counselors, which promotes the ideas that the public needs to be as informed as possible and that people entangled in legal matters in this field should have reasonable access to knowledgeable legal assistance regardless of income. National Security Counselors represents all kinds of whistleblowers and former government employees. And the team operates in large part from donations, especially their pro bono work. So, if you'd like to donate and further their mission, they would greatly appreciate it. You can check out their website and donate by clicking on the link below. Or you can just yell at kell on blue [email protected].

[00:25:10]And of course, we'll let you know what happens with this lawsuit and if I get to depose President Trump. Should be fun. Now, all this highlights why it's so important to get a great lawyer when you're dealing with your own case. Now, after I started this channel, every week I'd get hundreds of comments and emails from viewers who are dealing with legal problems. And they'd ask, "Can you help me find a lawyer? How do I know if this attorney is any good?" And there's a massive gap in our justice system. is that people don't know how to find the right lawyer for their specific situation. They're scared. They're overwhelmed. And they end up doing nothing or hiring the first attorney who calls them back. And that really bothered me. So, I started to wonder, what if there was a different way? What if we could build a law firm that actually lived up to the values that I talk about on this channel?

[00:25:47]Transparency, accessibility, and putting clients first instead of chasing billable hours. A firm where you don't need to pay anything upfront and your lawyers only get paid if you do to maximize your opportunity for justice.

[00:25:57]So, a few years ago, I decided to fix that problem. I decided to start my own personal injury law firm. And honestly, it wasn't an easy choice. But I realized I was in this unique position. I had this platform, this community, and the experience. Not to get rich. Trust me, there are easier ways to make money than starting a law practice. But we did it because access to justice shouldn't be a luxury. Because finding the right legal representation shouldn't feel like playing Russian roulette with your future. And when you work with my firm, you're not just getting a lawyer. You're getting a team that understands that behind every case is a real person with real stakes. If we can't represent you or you're in a state where we don't practice, we'll take the time to try to match you with an attorney in my personal network of lawyers. A national network of some of the best lawyers in the country who actually specialize in what you're going through, located right where you are, not just whoever happens to be available. So, if you're dealing with a personal injury, a car crash, a data breach, sexual harassment, a social security or workers comp issue, give us a call at the number on screen or click on the link below. Now, I can't represent everyone that watches this channel. I wish I could, but what I can do is make sure that when you need legal help, you have somewhere to turn to that you can trust. So whether it's me handling your case or the incredible attorneys we partnered with, you'll get the same principles of honesty and education that we bring to every video.

[00:27:02]And if you're dealing with a legal issue and you're not sure where to start, check out the link in the description.

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[00:27:10]Because at the end of the day, that's what this is all about. Making sure that when life gets complicated, you don't have to face it alone. Which is why when you need a lawyer, you don't just need a legal team.