Judges set to stomp Trump’s claim that docs are 'his property’

What happened

AlterNet, citing Politico, reports that a D.C. Circuit panel appeared deeply skeptical on Friday of the Trump administration’s argument that the Presidential Records Act is unconstitutional. Judges Patricia Millett and Cornelia Pillard pressed Justice Department attorney John Bailey over the claim that official presidential papers belong to the president. The panel had not ruled at the time of the report.

The 1978 law makes presidential records public property and establishes access for Congress, law enforcement, and eventually the public. Bailey acknowledged that, without the statute, it would not prevent a president from selling records containing national-security secrets. Pillard warned that presidential relatives could likewise sell records to foreign interests, creating opportunities for blackmail.

AlterNet connects the dispute to the criminal charges Trump faced over classified documents, but the proceeding described here concerns the broader constitutional status of the records law. The administration also argued that the statute unfairly burdens the executive branch because Congress and the federal courts are not governed by an equivalent law.

The claim is bigger than one records dispute

The administration is not merely contesting how particular documents were classified or handled. Its Office of Legal Counsel declared the entire Presidential Records Act unconstitutional, attacking the legal foundation for treating a president’s official papers as belonging to the public.

That position would concentrate control over taxpayer-funded records in the person who generated them. It would also weaken the mechanisms through which investigators, Congress, historians, and the public can reconstruct presidential conduct. Advice to a president already receives substantial protection under the law, including a reported restriction on public access generally lasting at least 12 years. The administration is challenging the ownership structure itself.

Power sits with the executive—and its lawyers

Trump holds the presidency. His Justice Department chose to advance this position, and its lawyers are asking the judiciary to remove a statutory restraint on presidential control of official records. The weaker actor in this conflict is not the president burdened by paperwork. It is the public, whose ability to recover its own government’s history depends on enforceable preservation rules.

The judges’ questions exposed the practical stakes. If official records become personal property, control can follow private incentives: secrecy, profit, inheritance, or disposal. Those consequences are not rhetorical excesses imported by critics. They arise from the government’s own theory, which Bailey defended even when Millett tested it against the sale of national-security secrets.

“Unfairness” is a diversion

The comparison with congressional and judicial records misdirects attention from the decision actually before the court. Whether other branches should face stronger archival requirements does not establish that presidents privately own records created through public office and public resources.

Pillard identified the partisan logic embedded in that argument: it treats separation of powers as protection for a particular president rather than for the presidency as an institution. The relevant question is not whether every branch operates under an identical statute. It is whether Congress may prevent a departing president from converting the documentary record of executive power into personal property.

Skepticism is not a ruling

AlterNet’s headline promises judicial defeat, but the reporting establishes only sharp questioning. Appellate judges often use hypotheticals to test the reach of a legal theory; their skepticism may indicate where the case is headed, but it is not a judgment.

That distinction matters because triumphalist framing can conceal how much remains unresolved. The judiciary still has to decide whether the statute survives this challenge. Until then, the consequential fact is that the executive branch has formally asserted a theory under which presidential records belong to the president.

The systemic error

Watergate produced a recognition that presidential records are instruments of public accountability, not personal trophies. The Trump administration’s position attempts to reverse that settlement by converting institutional memory into executive property.

The larger pattern is the use of constitutional maximalism to strip durable constraints from the presidency. If the record of official power belongs to the official who exercised it, accountability becomes dependent on that official’s consent. A government unable to preserve evidence of what its president did is not merely forgetful. It has handed the subject of oversight control over the archive that makes oversight possible.

Thanks to Alter Net

Source: Judges set to stomp Trump’s claim that docs are ‘his property’