The Administration Moves to Strike Down the Presidential Records Act Itself — and a D.C. Circuit Panel Pushes Back Hard

The Administration Moves to Strike Down the Presidential Records Act Itself — and a D.C. Circuit Panel Pushes Back Hard

NEW (Oct. 16, 2026): In a two-hour argument Friday, the D.C. Circuit heard the Trump administration's bid to invalidate the 1978 Presidential Records Act — the first direct presidential challenge to the Watergate-era law, and a genuinely new front in this fall's consolidation fight: not merely resisting a statute, but asking a court to erase one that constrains the executive.

The posture: in April 2026, DOJ's Office of Legal Counsel issued an opinion declaring the entire statute unconstitutional; a district judge ruled in May that the administration must keep complying with the law while litigation continues; on Friday the appeal reached a panel of Obama appointees Patricia Millett and Cornelia Pillard and Trump appointee Justin Walker. DOJ attorney John Bailey defended the position that presidents own their official papers — conceding under Millett's questioning that the law, if struck down, would not stop a president from selling national-security secrets:

"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," Bailey said. "Consistent with history and tradition, … the president's papers belong to the president, yes."

Pillard pressed the same point to its reductio — heirs and successors disposing of records freely:

"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," the judge said, adding that could lead to "blackmail."

And she flagged the deeper separation-of-powers claim underneath: "It's assuming that the separation of powers doesn't protect the office of the presidency, but only this president¹." When Bailey said "We're not challenging FOIA," Millett's two-word reply — "Not now" — captured the slippery-slope concern that the PRA is the first domino, with the Federal Records Act and FOIA behind it.

What it means: the stakes run straight through the Mar-a-Lago documents saga — the PRA was the legal basis of Jack Smith's records case — and through every future fight over who owns the paper trail of this presidency. The stakes of the ruling are symmetric: a win for the administration would leave the current term's records with no statutory protection at all; a loss would mark another appellate rejection of the OLC's most sweeping constitutional theories. The panel's merits ruling is the thing to watch.