A federal appeals court appears likely to dismiss President Donald Trump’s argument that a law ensuring presidential papers are retained by the government is unconstitutional.
Trump’s legal team has argued that the 1978 Presidential Records Act is illegal after the president was accused of violating the law by storing classified documents at his Mar-a-Lago home. The case continues to play out in a D.C. Circuit court, where a three-judge panel weighed the Justice Department’s arguments on Friday.
Two judges on the panel, who were both appointed by former president Barack Obama, Patricia Millett and Cornelia Pillard, argued that the DOJ’s position could place the country in jeopardy. Federal attorneys argued that since George Washington, American presidents “exercised exclusive control and ownership over their presidential records after leaving office,” even giving them away and selling them, a tradition broken after Watergate, when the DOJ contended Congress exceeded its “constitutional authority over the President” and violated the separation of powers by giving the United States “complete ownership, possession, and control” over presidential records.
“Can the president then offer on eBay to sell them, all of our national security secrets to the highest bidder?” Millett pressed back.
“The Presidential Records Act, if unconstitutional, would not be a bar to that,” DOJ attorney John Bailey replied. “Consistent with history and tradition … the president’s papers belong to the president, yes.”
The DOJ argued that leaving official papers in the hands of the government once the president has left office leaves the door open to future administrations weaponizing sensitive information against their political opponents.
“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,” Bailey said.
Pillard shot back.
“That is … such a sad and such a partisan view,” the judge said. “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.”
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The DOJ dropped the case targeting Trump’s alleged storing of classified documents at Mar-a-Lago after he won reelection. Last year, the Justice Department announced it had concluded that the Presidential Records Act is unconstitutional because it violates the separation of powers, triggering a lawsuit from a watchdog group called Citizens for Responsibility and Ethics in Washington, and several other critics.
That lawsuit is what is now being debated in court.