A federal appeals panel appeared deeply doubtful Friday of the Justice Department’s argument that the Presidential Records Act is unconstitutional, with one judge calling the government’s position “sad,” The New York Times reported on Friday.
The 1978 law, a post-Watergate measure, treats White House records as government property that must be saved and handed to the National Archives. Justice Department lawyer John Bailey told the D.C. Circuit panel the statute intrudes on the presidency and has outlived its usefulness. He warned a future president might use the records to embarrass a predecessor’s staff.
Judge Cornelia Pillard, an Obama appointee, rejected that framing. “That is such a sad and such a partisan view,” she said. She added that it assumed the separation of powers protects only the current president, which has never been true.
Judge Patricia Millett, also an Obama appointee, asked Bailey how presidents received reliable advice for decades under the law. The judges noted that if records were personal property, a president could sell them or leave them to heirs, and Pillard raised the possibility of a relative selling them to a foreign adversary. Bailey replied that a former president would be a better steward of the records than a possibly hostile successor.
Judge Justin Walker, a Trump appointee, raised concerns about the law, including whether stored records could be mined by a foreign adversary using AI, and asked whether Congress could demand similar disclosure from the Supreme Court. Daniel Jacobson, representing the challengers, said the presidency differs from the judiciary and argued that “No branch is hermetically sealed from proper regulation.”
The Justice Department’s Office of Legal Counsel found the law unconstitutional in April, and a federal judge ordered the White House to keep preserving records in May.
Trump has long either dismisssed the legitimacy of the Presidential Records Act or claimed it says something completely different than what it does — which formed a key part of the criminal case against him for hiding classified national defense information at his Mar-a-Lago resort after leaving office following his first term.
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