A panel of appeals court judges on Friday appeared deeply skeptical of Justice Department claims that a decades-old federal law requiring the White House to preserve presidential records is unconstitutional.
The Presidential Records Act, enacted in 1978, states that White House records are government property and must be saved, turned over to the National Archives after a president leaves office, and for the most part eventually be made public.
But the Trump administration has said that Congress overstepped its authority by ordering the executive branch to save its records, prompting a lawsuit from the American Historical Association and watchdog groups. The issue may ultimately be settled by the Supreme Court.
Friday’s hearing before a three-judge panel of the U.S. Court of Appeals for the District of Columbia Circuit highlighted President Trump’s belief that White House records should essentially be treated as the president’s personal property.
Over more than an hour, John Bailey, a government lawyer, argued that the entire Presidential Records Act was an “unconstitutional intrusion on the presidency.” The law, he said, had become obsolete “in the polarized and partisan times we live in.” He imagined a future president posting his or her predecessor’s records online to “embarrass the former president’s staff,” or advisers withholding advice out of fear it could be scrutinized later.
“That is such a sad and such a partisan view,” Judge Cornelia Pillard responded. “It’s assuming that the separation of powers doesn’t protect the office of the presidency, but only this president, and it’s just never been the case.”
Passed in the wake of the Watergate scandal and the dispute over President Richard M. Nixon’s files, the law defines presidential papers as the records the president and White House staff members create in their work.
The law says the government “shall reserve and retain complete ownership, possession and control of presidential records.” And it lays out how the National Archives should collect and preserve those materials when an administration ends. Most records must then be made public after five years. Even sensitive records generally must be released no later than 12 years after a president leaves office.
In April, the Justice Department’s Office of Legal Counsel, which advises the executive branch on the legal issues, issued a memo determining that the law was unconstitutional and suggesting officials could disregard it. In May, a federal judge ordered the White House to continue preserving records in accordance with the law while the issue is litigated.
Mr. Bailey told the appeals court judges that the law represented “pure congressional aggrandizement,” born out of a single moment nearly 50 years ago. He said the law boiled down to “one political branch going after its constitutional rival.”
Judge Pillard and Judge Patricia Millett, both Obama appointees, peppered Mr. Bailey with questions about how presidents had been able to receive reliable advice for decades while still respecting the law.
They also pressed Mr. Bailey on how an incoming administration could get up to speed on critical national security issues if all the records related to recent decisions had been destroyed or removed by the outgoing president.
And they noted that if White House records were considered the personal property of a president, he or she could do anything with them after leaving office, including selling them. A president’s papers would also then be inherited by heirs, who could likewise do anything with them.
“It just doesn’t even logically, to me, make sense that that’s a better protection” than that provided by the government, Judge Millet said.
“It doesn’t,” Judge Pillard added. “So the bad boy nephew of the deceased president decides they’re going to sell the president’s records to the highest bidder, and that happens to be, you know, the Chinese Communist Party?”
Mr. Bailey responded that an ex-president would be a better guardian of an administration’s record than a successor, who could be a political opponent.
“I think if I had to turn over all of my emails and Teams messages to either my current boss or to the person that’s going to replace my boss and fire me, I would probably rather turn that all over to my current boss,” he said, referring to Microsoft Teams, a communications platform.
Mr. Trump has long chafed at the requirements of the President Records Act. National Archives officials said that he failed to properly turn over some records at the conclusion of his first term in office. Instead, Mr. Trump took boxes of documents to his Mar-a-Lago estate in Florida, allegedly including classified material, prompting the investigation that led to his 2023 indictment. Those charges were ultimately dismissed.
Daniel Jacobson, a lawyer representing the groups challenging the Justice Department guidance, told the appeals court judges that presidential advisers had always faced the possibility that their memos could one day be leaked or made public. He noted that the law already gave presidents the authority to assert executive privilege over some records, and included safeguards for classified and confidential information.
And he emphasized that there was no evidence White House staff members had historically been prevented from doing their work because of the law.
“The thing that strikes me as just odd about this case is this is a law that went into effect 45 years ago,” he said.
The third judge on the panel, Judge Justin R. Walker, a Trump appointee, expressed some concerns about the requirements of the law, including whether the mass preservation of documents today could allow a foreign adversary to use artificial intelligence to scan large quantities of presidential records and create a “mosaic” that could reveal confidential information.
He also pressed Mr. Jacobson on whether Congress could pass a similar law ordering the archiving and public release of the internal records of the Supreme Court, or the entire federal judiciary. Internal records of the Supreme Court are considered the personal property of the justices, allowing them to withhold them from the public until long after they have died, or destroy them entirely.
Mr. Jacobson replied that the presidency was different from the judiciary for several reasons, including that an incoming administration relied on the national security determinations and other analyses done by the last one. He added that Congress already regulated the judiciary in more limited ways, including by requiring federal judges to disclose financial transactions.
“No branch is hermetically sealed from proper regulation,” he said.
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