President Trump's Justice Department told a federal appeals court in Washington on Friday that the 1978 Presidential Records Act is unconstitutional, arguing the post-Watergate law intrudes on the president's control of his own office. DOJ lawyer John Bailey agreed the law is invalid "from first word to last period," and the D.C. Circuit judges pushed back.
Bailey argued that Congress exceeded its "constitutional authority over the President" and violated the separation of powers. He said handing a president's records to the next administration chills candid advice: "It is that loss of control that is impairing the executive branch's ability ... to get candid advice from advisers." He noted that since George Washington, presidents "exercised exclusive control and ownership over their presidential records after leaving office."
Judge Patricia Millett, an Obama appointee, asked whether a president could "offer on eBay to sell them, all of our national security secrets, to the highest bidder." Bailey said the law "would not be a bar to that," adding, "The president's papers belong to the president." Judge Cornelia Pillard, also an Obama appointee, called the position "such a sad and such a partisan view." Judge Justin Walker, a Trump appointee, credited the concern about advisers: "The delta to me is important."
The case, American Historical Association v. Trump, was filed by historians and the watchdog American Oversight after DOJ's Office of Legal Counsel concluded in April that the law exceeds Congress's power. A district judge's May order requiring White House officials to keep following the law stays in place. There is no ruling yet, and the case could reach the Supreme Court.
Photo: President Trump in the Oval Office, Aug. 10, 2026. Official White House photo by Molly Riley (public domain, via Wikimedia Commons)
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