Politico reports a federal appeals court panel sounded “deeply skeptical” Friday about President Donald Trump’s bid to invalidate a Watergate-era law that governs presidential records — one that formed the base of the criminal charges he faced for stealing classified documents.
“Two judges on the D.C. Circuit panel sharply questioned Justice Department attorney John Bailey about the administration’s assertion that the Presidential Records Act, a federal law intended to ensure that presidential papers are retained by the government, is unconstitutional. That position, legal experts warn, gives Trump leeway to destroy or refuse to turn over White House records from his current term.
On Friday, judges Patricia Millett and Cornelia Pillard said the administration’s far-reaching argument that presidents own taxpayer-funded official papers could “lead to absurd and even dangerous results.”
“Can the president then offer on eBay to sell them, all of our national security secrets to the highest bidder?” Millett asked, adding that under the administration’s view, “they’re his property.”
“The Presidential Records Act, if unconstitutional, would not be a bar to that,” answered Bailey, arguing that: “Consistent with history and tradition, … the president’s papers belong to the president.”
That was the tradition until Watergate, argued Politico — but then Congress passed a law seizing President Richard Nixon’s incriminating papers and tapes.
“In 1978, lawmakers passed and President Jimmy Carter signed the Presidential Records Act, declaring that the records of all future presidents would be publicly owned,” reports Politico. “That law also sets up mechanisms for Congress, law enforcement and the public to gain access to the records, with advice given to the president usually off limits to the public for at least 12 years.
No president has directly challenged that law until the secretive Trump administration’s Justice Department’s Office of Legal Counsel opined that the entire statute is unconstitutional. Politico reports the Trump administration also argued that the Presidential Records Act is unfair to the executive branch because Congress has no similar law to govern its own records or those of the federal courts.
“That is … such a sad and such a partisan view,” argued Judge Pillard, however. “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.”
Pillard also argued that without the Presidential Records Act, presidents or their family can sell the papers for whim or profit.
“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,” argued Pillard, which she said could lead to “blackmail.”