A flag depicting Donald Trump flies among a group of supporters near Mar-a-Lago, Florida, in 2024.
Alon Skuy/Getty Images
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Alon Skuy/Getty Images
President Trump has pushed the limits of executive power since returning to the White House.
In their arguments Friday before a federal appeals court in Washington, administration lawyers will make a particularly bold assertion: that documents created at the White House belong to Donald Trump, not the American people. The move comes amid a series of actions during Trump’s second term to test limits put in place after the Watergate scandal, and could be another case that ends up before the conservative-leaning Supreme Court.
Six months ago, the Justice Department moved to invalidate the Presidential Records Act, a federal law in effect since 1978. Conservative lawyer Michael Edney included the move in a long line of other attempts to chip away at laws from that era.
“This is the story of an excessive, post-Watergate statutory incursion into the prerogatives of the executive branch,” Edney said during a recent webinar sponsored by the Federalist Society.
For about 200 years, presidents could decide for themselves what to do with the newspapers they created while in office, until differences with Richard Nixon prompted Congress to intervene. the Archives Act, until this year.
“The Presidential Records Act is unconstitutional and a flagrant violation of the separation of powers,” White House spokeswoman Lauren Bis said.
The White House’s reinterpretation of the law comes after Trump was charged with obstruction of justice for allegedly storing classified documents in a bathroom, ballroom and office at his Mar-a-Lago resort. A federal judge dismissed the case on technical grounds related to the prosecutor’s appointment, and the Justice Department ultimately dropped the case after Trump’s re-election.
Question on the public’s right to papers
Nikhel Sus is the lead attorney for Citizens for Responsibility and Ethics in Washington, a watchdog group that filed a lawsuit against Trump’s decision.
“If the courts accepted it, and we hope they don’t, it would mean that people would have no right of access to the president’s documents and that would be a major loss for archivists, historians and for the American people as a whole,” Sus said.
U.S. District Judge John Bates, appointed by former President George W. Bush, ruled against the Trump White House this year, in a ruling that opened with a passage from George Orwell’s dystopian novel 1984: “Whoever controls the past controls the future; whoever controls the present controls the past,” the judge wrote.
Three judges from the U.S. Court of Appeals for the D.C. Circuit will consider the issue Friday.
The Trump administration has said in court papers that keeping all these records places a burden on the White House and that it could dissuade advisers from having honest conversations with the president.
Continuity of government
But former government officials say being able to view these documents is essential.
“Access to records on national security matters of former presidents is truly vital to 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 staffers sometimes requested President Bill Clinton’s documents, to understand the conversations Clinton had with world leaders and members of Congress.
“Often, the only record of what a president said to a foreign leader — or perhaps more importantly, what a foreign leader, friend or foe, said to the president of the United States — is in a written document,” Bellinger said.
Not being able to view those diaries, he said, would put future presidents at a “terrible disadvantage.”
Edney, who also worked for the National Security Council and Bush’s Justice Department, said he thought Congress could probably pass “thoughtful” records preservation legislation. He said parts of the current Presidential Records Act that grant Congress automatic access and presuppose that the records will be publicly disclosed are “constitutionally problematic.”
Edney said he has doubts about whether the watchdog groups suing to challenge Trump’s decision actually have the legal standing to sue.
But the Trump administration appears to have overcome those concerns because it has a more ambitious goal 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 making their arguments, as opposed to a later administration.”
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