Main: Then-former President Donald Trump gestures after speaking at Trump National Golf Club in Bedminster, N.J., Tuesday, June 13, 2023, after pleading not guilty earlier that day in a Miami courtroom to dozens of felony charges alleging that he retained classified documents and refused government demands to return them. (AP Photo/Andrew Harnik, File). Right inset: President Richard Nixon tells Republican campaign contributors that he will uncover the truth about the Watergate scandal during a speech in Washington on May 9, 1973. (AP Photo/John Duricka, File).
A federal judge has rejected an effort by the Trump Justice Department to allow the president to retain or destroy records after leaving office. On Friday, a three-judge panel of the U.S. Court of Appeals for the D.C. Circuit also appeared skeptical that the executive branch can override the Presidential Records Act (PRA) on its own.
The panel consisted of U.S. Circuit Judges Patricia Millett, Cornelia “Nina” Pillard and Justin Walker. Millett and Pillard were appointed by Barack Obama, while Walker was appointed by Trump. All three actively questioned Justice Department attorney John Bailey during the hearing.
Bailey repeated the department’s argument that Congress exceeded its “constitutional authority over the President” and violated the separation of powers by granting the United States “complete ownership, possession, and control” of presidential records. He pointed to former President Richard Nixon’s post-resignation failure to challenge the Presidential Recordings and Materials Preservation Act in Nixon v. Administrator of General Services.
Walker quickly interrupted Bailey, reminding him of D.C. Circuit guidance urging attorneys not to read their arguments word for word, but to “talk to us” instead.
“Absolutely, your honor,” Bailey replied.
“I figured you knew it,” Walker said, apparently referring to the legal material under discussion.
The American Historical Association and American Oversight filed suit within a week of an “unconstitutional” opinion issued on April Fools’ Day by the Justice Department’s Office of Legal Counsel. The opinion said Trump “need not further comply” with the PRA. It blamed the law for the FBI search of Mar-a-Lago and for the resulting allegations that Trump faced “criminal liability” after allegedly retaining classified documents as a former president and conspiring to obstruct their return to the National Archives.
In late May, a district judge appointed by George W. Bush ruled that Congress had “validly enacted” the PRA after Watergate. The judge ordered the White House and senior officials to “comply with the Records Act and not rely on the OLC opinion and the 2026 Records Guidance.”
During Friday’s hearing, Bailey agreed that the entire PRA was unconstitutional “from first word to last period.” His position drew sustained and visible skepticism, particularly from Millett.
“You didn’t come up here and say this portion is unconstitutional, this portion is unconstitutional. You just told us this is the personal property of the president. They can do what they want. That’s how the history’s been. That’s how it is,” Millett summarized.
Bailey argued that, beginning with George Washington, presidents had maintained “exclusive control and ownership over their presidential records after leaving office.” Some presidents, he said, “gave their papers away,” while “some sold them,” reflecting what he described as a 200-year “history and tradition.”
Although he acknowledged that the government is currently barred from acting on its interpretation of the PRA, Bailey maintained that the law has “no constitutional applications.” He said even requiring “low-level employees within the National Security Council” to preserve records for the executive branch could be “problematic,” citing broad concerns about political retaliation when one administration replaces another.
Millett then intervened.
“Maybe it would be OK to require low-level officials in the NSC to keep records so that the incoming president at 12:01 on Jan. 20 will have information about dire threats to the security of the United States and terrorist activities that are planned for the next week,” she said. “And you want to say no.”
“Not at all, your honor,” Bailey responded. “It may well be that Congress shows its work and requires the preservation of those documents.”
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“What? I’m sorry,” Millett said, apparently taken aback by the suggestion that an incoming president might have to “spend the afternoon of Jan. 20” proving a need to access records from the previous administration concerning “impending terrorist attacks […] threatened against the United States.” She then asked Bailey to “imagine” what limits Congress could impose.
“I’m doing my best here,” Bailey replied, without offering an example of a permissible restriction.
“You have said that is what the Constitution requires in your view. That the president can pack these things up and take them away. Is that your position?” Millett asked again.
“Our position is that, yes, because the Presidential Records Act is unconstitutional,” Bailey said.
But what if the president “offers on eBay to sell all of our national security secrets to the highest bidder?” Millett asked.
“They’re his property,” Millett said, following the lawyer’s logic. “Can he?”
“The Presidential Records Act is unconstitutional. It would not be a bar to that,” Bailey said, arguing that Senior U.S. District Judge John Bates “erred” by failing to see that the PRA was a “sweeping intrusion on the President’s executive function.”
Historians and the plaintiff watchdog group have warned that the Trump administration is embracing a world in which the “President may destroy his Administration’s records—including national security records—as he sees fit, or take the records with him for private use after leaving office, and Congress can do nothing about it.”
In a statement to Law&Crime, American Oversight Executive Director Chioma Chukwu said that the stakes of the case couldn’t be higher.
“Right now, the court’s order is all that stands in the way. If it falls, the court-ordered requirement to preserve this White House’s records ends immediately. Records that are destroyed are gone for good,” Chukwu said. “Today we asked the appeals court to uphold that order, because the historical record of the presidency belongs to the American people. Our democracy depends on it.”
AHA Executive Director Sarah Weicksel said the destruction of records means “a piece of history is lost” each time it happens.
“The loss of the historical record would prevent historians from understanding and contextualizing the decisions and actions of a presidential administration,” Weicksel added. “What is ultimately at stake in this case is the ability of Americans to access the full documentary record of their history—something that is essential in a democracy.”
American Oversight is one of the groups vying at the 11th U.S. Circuit Court of Appeals to bring a redacted version of Volume II of ex-special counsel Jack Smith’s Mar-a-Lago report public. U.S. District Judge Aileen Cannon permanently buried the report on Trump and his former co-defendants, scolding Smith for his “brazen” decision to create it at all.
Attorney General Todd Blanche raised a PRA defense to the Espionage Act charges without success while serving as Trump’s personal lawyer, several months before Cannon decided that Smith was unlawfully appointed and tossed the indictment on that ground.
A separate pending federal lawsuit in Maryland seeks “all” records from the Mar-a-Lago search that the FBI “returned” to Florida to “someday be part of the Trump Presidential Library.”
The post DOJ lawyer says ‘I’m doing my best here’ as judge demands to know if Trump can sell ‘national security secrets’ on eBay after presidency first appeared on Law & Crime.
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