The Trump administration told an appellate court Friday that a president could do whatever he wants with records that include the nation’s most guarded secrets — and potentially even sell them on eBay.
John Bailey, a Justice Department attorney, argued that the 1978 Presidential Records Act is unconstitutional, a conclusion the department made in April. The post-Watergate law says that all official records created or received by presidents are U.S. government property.
Judge Patricia Millett summed up the DOJ’s argument by focusing on how it would impact not just the current president, but the institution of the Executive Office of the President, which she referred to as the EOP.
“You have adopted a position that says the president, whoever it is at the time, on Jan 20th can take every record — every record within the EOP — and destroy it so that the incoming president has no information about national security threats, about planned terrorist attacks, about critical negotiations in an ongoing war, critical economic negotiations for the health of this country’s economy ... has to come in knowing nothing. You have said that is what the Constitution requires in your view,” Millett said.
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Bailey replied: “Our position is that, yes, because the Presidential Records Act is unconstitutional.”
He didn’t back down, even when Millett tossed out an extreme hypothetical. “Can the president then offer on eBay to sell them, all of our national security secrets, to the highest bidder? They’re his property,” she said. “Can he?”
Bailey stammered at first, but eventually replied, “The Presidential Records Act is unconstitutional would not be a bar to that —”
“Your argument is that these records are his property, correct?” Millett interrupted.
“Consistent with history and tradition, yes,” Bailey said.
“I’m not asking you the source of your argument. I’m asking you your argument. These are his property to do with as he likes, correct?”
“The president’s papers belong to the president, yes,” Bailey asserted.
The arguments came in a legal challenge brought by a watchdog group and historians who fear the wholesale destruction of records when the second Trump administration ends in just over two years.
Congress passed the PRA in the shadow of the Watergate scandal after two centuries of presidents laying claim to their official records. President Richard Nixon stepped down but later sought to assert ownership of White House tapes that documented his misconduct in office.
Trump already has a thorny relationship with the PRA, because of the way he removed classified government records from the White House upon his exit in 2021 and relocated them to his oceanside mansion of Mar-a-Lago when he was a regular citizen. He faced criminal charges related to the records until a judge, whom Trump himself appointed, dismissed the indictment during the height of Trump’s re-election campaign in 2024.
The April opinion from DOJ’s Office of Legal Counsel, which issues executive branch legal guidance but has no constitutional authority, reversed course on nearly 50 years of White House administrations abiding by the PRA.
The 52-page memo, signed by Assistant Attorney General T. Elliot Gaiser, a Trump appointee who once interned at the conservative Heritage Foundation, concluded that the law mandating public access to presidential records “serves no identifiable and valid legislative purpose.”
“It exceeds any preservation power because Congress cannot preserve presidential records merely for the sake of posterity,” the memo says.
American Oversight and the American Historical Association sued the next week. In May, U.S. District Judge John Bates temporarily blocked the Trump administration from abiding by the new DOJ legal guidance — essentially ensuring the White House continues to abide by the PRA. The administration appealed the ruling, which led to Friday’s hearing.
At the arguments, DOJ said part of the concern was an attempt to prevent the next presidential administration from exposing internal records that would embarrass Trump.
The revelation was made when the DOJ’s lawyer was arguing about why the current administration would want to control the flow of information to the next president — and the notion that Congress could try to pass a narrower version of the PRA with new restrictions.
“Your honor, if the [next] president’s ideas of his official duties is posting his predecessor’s advisers’ communications to embarrass them for political gain, we think that’s a problem,” Bailey said.
The comment drew a sarcastic response from Millett, who said: “Oh! It’s going to be a motive test! We’re going to have a motive test the afternoon of January 20th? That’s what you want: Is this for good reasons or this is to embarrass a past president? That’s the test Congress is supposed to write into the law?”
Bailey doubled down on that rationale in a later exchange with Judge Cornelia T.L. Pillard, who once worked as a senior attorney at the DOJ office that issued the new memo.
He stressed that “giving control to a future president” was the primary concern here. “That is the very issue,” Bailey argued. “It is that loss of control that is impairing the executive branch’s ability ... to get candid advice from advisers.”
Pillard said: “That is such a sad and such a partisan view, 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.”
In a call after the court hearing with both advocacy organizations, American Oversight Executive Deputy Director Liz Hempowicz addressed that exchange.
“I don’t think there’s anything in the Constitution about embarrassing the executive,” she said. “The government did not shy away from its concern about partisanship in decisions made in the Presidential Records Act.”
“Today’s argument really, really underscored the stakes of the litigation,” she said.
Sarah Weicksel, who leads the American Historical Association, stressed the importance of safeguarding an accurate account of the most powerful political office on the globe.
“It’s not just a question about this moment,” she said. “This is a question about what is preserved, and what we will be able to learn about ourselves and what future Americans will be able to learn about us in 10, 20, 50, 100 years.”
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