Appeals court to weigh Trump claim that presidential records are his

DOJ moved six months ago to invalidate 1978 Presidential Records Act

The Trump administration will ask a federal appeals court in Washington on Friday to rule that papers created in the White House belong to President Trump personally, not to the American people. The claim, lodged in court papers with the U.S. Court of Appeals for the D.C. Circuit, comes amid a series of actions under Trump’s second term to test post-Watergate limits on the presidency and could be another case that ends up at the Supreme Court. Three judges from the D.C. Circuit will hear the case.

Six months ago, the Justice Department moved to invalidate the Presidential Records Act, a federal law in place since 1978. Conservative lawyer Michael Edney, who worked in the National Security Council and Justice Department under President George W. Bush, cast the move in a long line of other attempts to pare back statutes from that era.

For some 200 years, presidents could decide for themselves what to do with the papers they created in office, until disputes with Richard Nixon prompted legislation. Every president from Jimmy Carter through Joe Biden has complied with the law. This year, the Trump administration stopped.

“The Presidential Records Act is unconstitutional and a clear violation of the separation of powers,” White House spokeswoman Lauren Bis said in a statement.

“This is a story about a post-Watergate, overbroad statutory incursion into the prerogatives of the executive branch,” Edney said in a recent webinar sponsored by the Federalist Society.

The Trump administration’s reinterpretation follows Trump’s federal indictment on obstruction of justice charges for allegedly stockpiling classified documents in a bathroom, ballroom and office at his Mar-a-Lago resort. A federal judge threw out that case for technical reasons related to the appointment of the prosecutor, and the Justice Department dropped it after Trump won reelection.

Senior U.S. District Judge John Bates, an appointee of former President George W. Bush, ruled against the Trump White House earlier this year in a case brought by the watchdog group Citizens for Responsibility and Ethics in Washington. Bates opened his decision with a passage from George Orwell’s dystopian novel “1984”: “Who controls the past controls the future; who controls the present controls the past.”

“If the courts were to accept it, and we are hopeful that they will not, it would mean the people really have no right of access to the president’s papers and that would be a major loss for archivists, historians and to the American people writ large,” Sus said.

In its court papers, the Trump administration argued that retaining all such records imposes a burden on the White House and could discourage advisers from having candid conversations with the president. Former government officials have countered that access to the records is essential to the continuity of government.

“Access to the records on national security issues of former presidents is really vital for the continuity of our government,” said John Bellinger, who served as legal adviser to the National Security Council under George W. Bush. Bellinger said he and other Bush administration officials sometimes requested the papers of President Bill Clinton to understand conversations Clinton had with world leaders and members of Congress.

“Often the only record of what a president has said to a foreign leader — or perhaps even more important, what a foreign leader, friend or foe, has said to the president of the United States — is in a written document,” Bellinger said. Without such access, he added, future presidents will be left at a “terrible disadvantage.”

Edney said he believed Congress could pass a “thoughtful” records preservation statute but that parts of the current act — which provide Congress with automatic access and presume the records will be publicly disclosed — are “constitutionally problematic.” He also said he had doubts about whether the watchdog groups suing to challenge the Trump administration’s move have legal standing to proceed.

Edney, who has tracked the litigation, said the administration appears to have moved past those standing concerns because it has a higher objective in mind. “They want this to go to the Supreme Court,” Edney said. “I think they want this resolved at a time of their choosing, with arguments of their choosing, and a court of their choosing, and with the Solicitor General’s office that’s making their arguments, as opposed to a subsequent administration.”