Federal Appeals Judges Sharply Question Trump's Claim That Presidential Records Are 'His Property'
Key Takeaways
- •A D.C. Circuit panel on Friday sharply questioned the Trump administration's assertion that the Presidential Records Act is unconstitutional.
- •The Justice Department's Office of Legal Counsel issued an opinion declaring the entire 1978 statute invalid, arguing it is unfair because Congress and the federal courts face no similar record-keeping requirements.
- •Judges Patricia Millett and Cornelia Pillard warned that treating presidential papers as presidential property could lead to absurd and dangerous outcomes, including the sale of national security secrets.
- •The Presidential Records Act, passed after Watergate and signed by President Jimmy Carter in 1978, made presidential records publicly owned and created access mechanisms for Congress, law enforcement, and the public.
- •The panel's written ruling could be reviewed by the full D.C. Circuit or the Supreme Court and will help determine whether records from Trump's current term remain publicly owned and accessible.

A federal appeals court panel on Friday expressed deep skepticism about President Donald Trump's effort to invalidate the Watergate-era law that governs presidential records — the same statute that formed the basis of the criminal charges he faced over his retention of classified documents, according to a report by Politico.
Two judges on the D.C. Circuit panel, the Washington-based federal appeals court that routinely hears disputes involving presidential power and the federal government, sharply questioned Justice Department attorney John Bailey over the administration's assertion that the Presidential Records Act — a federal law intended to ensure that presidential papers are retained by the government — is unconstitutional. Legal experts warn that this position could give Trump leeway to destroy or refuse to turn over White House records from his current term.
On Friday, judges Patricia Millett and Cornelia Pillard said the administration's far-reaching argument that presidents own taxpayer-funded official papers could "lead to absurd and even dangerous results."
"Can the president then offer on eBay to sell them, all of our national security secrets to the highest bidder?" Millett asked, adding that under the administration's view, "they're his property."
"The Presidential Records Act, if unconstitutional, would not be a bar to that," Bailey responded, arguing that "consistent with history and tradition, … the president's papers belong to the president."
Politico noted that such papers were considered the president's private property by tradition until Watergate, when Congress passed a law seizing President Richard Nixon's incriminating papers and tapes. In 1978, lawmakers passed and President Jimmy Carter signed the Presidential Records Act, declaring that the records of all future presidents would be publicly owned. The law also establishes mechanisms for Congress, law enforcement, and the public to gain access to the records, with advice given to the president usually off limits to the public for at least 12 years.
No president had directly challenged that law until the Trump administration's Justice Department Office of Legal Counsel, the department office that issues authoritative legal interpretations binding on executive branch agencies, issued an opinion stating that the entire statute is unconstitutional. Politico reports that the administration also argued the Presidential Records Act is unfair to the executive branch because Congress has no similar law governing its own records or those of the federal courts.
"That is … such a sad and such a partisan view," Judge Pillard countered. "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."
Pillard also argued that without the Presidential Records Act, presidents or their families could sell the papers at whim or for profit. "So, the bad boy nephew of the deceased president decides they're going to sell the presidential records to the highest bidder, and that happens to be, you know, the Chinese Communist Party," she said, warning that such a scenario could lead to "blackmail."
The arguments marked the oral-argument stage of appellate review, in which judges question the parties before the panel issues a written ruling. That ruling could be reviewed by the full D.C. Circuit or the Supreme Court, and it will help determine whether records from Trump's current term remain publicly owned and accessible under the 1978 law.