Appeals Court Sounds Skeptical of Trump Administration’s Claim That the Presidential Records Act Is Unconstitutional
A federal appeals court panel sounded skeptical Friday of the Trump administration’s argument that the Presidential Records Act, the 1978 law that makes presidential records government property, is unconstitutional, according to reports from the Washington Examiner and Politico.
A three-judge panel of the U.S. Court of Appeals for the D.C. Circuit heard about two hours of argument in the case, which was brought by the government ethics group Citizens for Responsibility and Ethics in Washington (CREW) and other critics after the Justice Department concluded that the law violates the separation of powers, the Washington Examiner reported. A district court judge ruled in May that the administration must keep complying with the law while the litigation continues, Politico reported.
WHAT THE JUDGES ASKED ABOUT THE PRESIDENTIAL RECORDS ACT
Two judges appointed by former President Barack Obama, Patricia Millett and Cornelia Pillard, pressed Justice Department lawyer John Bailey on the administration’s position that presidents own their official papers.
“Can the president then offer on eBay to sell them, all of our national security secrets to the highest bidder?” Millett asked, according to the Washington Examiner.
“The Presidential Records Act, if unconstitutional, would not be a bar to that,” Bailey replied. “Consistent with history and tradition … the president’s papers belong to the president, yes.”
Pillard raised a scenario in which a president’s heirs inherit his papers: “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, according to UPI and Politico.
The third judge on the panel, Justin Walker, a Trump appointee, said he thought a similar records law covering the courts “would be unconstitutional as applied to us or applied to the Supreme Court,” Politico reported.
THE ADMINISTRATION’S ARGUMENT
The Justice Department argues that since George Washington, presidents “exercised exclusive control and ownership over their presidential records after leaving office,” and that Congress exceeded its “constitutional authority over the President” when it gave the United States “complete ownership, possession, and control” of those records after Watergate, according to the Washington Examiner.
Bailey argued that the law chills candid advice to presidents because a future, possibly hostile, administration could get the records. “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.
“That is … such a sad and such a partisan view,” 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.”
Millett said she was concerned the challenge could lead to similar arguments against other oversight laws, such as the Freedom of Information Act. “We’re not challenging FOIA,” Bailey said. “Not now,” Millett replied, according to Politico.
WHY THE LAW MATTERS
The law was central to the dispute over classified documents President Donald Trump kept at his Mar-a-Lago home after his first term. The Justice Department dropped that criminal case after Trump won reelection in 2024, the Washington Examiner reported.
The panel did not issue a ruling Friday.
Sources: Washington Examiner (Oct. 17, 2026); Politico (Oct. 16, 2026), a left-leaning outlet, for the Walker, FOIA and May district-court details; UPI (Oct. 16, 2026).
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