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 in a Miami courtroom earlier in the day to dozens of felony counts that he hoarded classified documents and refused government demands to give them back. (AP Photo/Andrew Harnik, File). Right inset: President Richard Nixon tells a group of Republican campaign contributors he will get to the bottom of the Watergate scandal during a speech on May 9, 1973, in Washington. (AP Photo/John Duricka, File).
After the Trump DOJ gave the president of the United States once accused of illegally retaining classified documents at Mar-a-Lago a green light to keep or destroy records upon leaving office, a judge stepped in and said no. And on Friday, a three-judge panel in Washington, D.C., suggested that the executive branch cannot unilaterally override the Presidential Records Act (PRA).
U.S. Circuit Judges for the District of Columbia Circuit Patricia Millett, Cornelia "Nina" Pillard and Justin Walker, two Barack Obama appointees and one Trump appointee, formed the panel. Each actively participated in questioning the DOJ's John Bailey.
Bailey once again argued 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 after Richard Nixon's post-resignation failure to challenge the Presidential Recordings and Materials Preservation Act in the case of Nixon v. Administrator of General Services.
Walker interrupted Bailey almost immediately, reminding him of D.C. Circuit "guidance" to attorneys not to read their arguments, and to "talk to us" instead.
"Absolutely, your honor," Bailey said.
"I figured you knew it," Walker replied, apparently referring to the case material.
The American Historical Association (AHA) and American Oversight sued within a week of an "unconstitutional" DOJ Office of Legal Counsel (OLC) opinion from April Fools' Day that said Trump "need not further comply" with the PRA. The memo blamed the PRA for the FBI search and Trump's resulting accusations of "criminal liability" for allegedly willfully retaining classified documents at Mar-a-Lago as a former president and conspiring to obstruct their return to the National Archives.
In late May, a George W. Bush-appointed district judge ruled the PRA was "validly enacted" after Watergate, ordering the White House and top officials to "comply with the Records Act and not rely on the OLC opinion and the 2026 Records Guidance."
Bailey agreed on Friday afternoon that the entirety of the PRA is unconstitutional "from first word to last period," prompting sustained and open skepticism from Millett in particular.
"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.
The DOJ attorney said that, starting with George Washington, American presidents "exercised exclusive control and ownership over their presidential records after leaving office," that some presidents "gave their papers away" and "some sold them" — the "history and tradition" for 200 years.
He acknowledged that the government is currently enjoined from acting on its interpretation of the PRA but stated that there are "no constitutional applications" to the PRA. Even requiring that "low-level employees within the National Security Council preserve their records for use of the executive branch" is "problematic," Bailey said, raising general concerns of political retaliation whenever administrations change.
At that point, Millett jumped in.
"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 replied. "It may well be that Congress shows its work and requires the preservation of those documents."
"What? I'm sorry," Millett said, apparently surprised at the suggestion that an "incoming president" would have to "spend the afternoon of Jan. 20" demonstrating a need to access documents from the prior administration about "impending terrorist attacks […] threatened against the United States." Millett then pressed Bailey to "imagine" restrictions that Congress could impose.
"I'm doing my best here," he said, not providing an example of a 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?" she asked again.
"Our position is that, yes, because the Presidential Records Act is unconstitutional," Bailey responded.
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."