“At least insofar as declaring the President’s official papers to be public property … is concerned, Congress’ action is not subject to serious challenge.”
The Justice Department’s Office of Legal Counsel, testifying to Congress in 1978, as quoted in its own April 2026 opinion
The Trump administration goes before the U.S. Court of Appeals for the D.C. Circuit at 9:30 Friday morning to argue that the Presidential Records Act, the post-Watergate law that makes White House papers the property of the public, is unconstitutional from top to bottom. The argument it brings rests on a 52-page opinion from the Justice Department’s Office of Legal Counsel, and the most revealing passage in that opinion is a footnote where the office admits it told Congress the opposite when the law was written.
Most of the coverage this week frames the case as historians against the White House. That is accurate and it leaves out the part you would want to know: the government’s lawyers are asking a court to throw out a statute their own office called safe in 1978, built on a theory the Supreme Court rejected in 1977, and they cite the criminal case against Donald Trump as a reason the law has gone too far.
What the Opinion Actually Says
You can read the whole thing; the Justice Department posted the opinion itself. It is dated April 1, 2026, addressed to the Counsel to the President, and signed by T. Elliot Gaiser, the Assistant Attorney General who runs the Office of Legal Counsel. Its conclusion fits in one line: “the PRA is unconstitutional, and the President need not further comply with its dictates.”
The reasoning runs through five of Congress’s powers and finds the law outside each one. The line that will matter most on Friday is the claim that Congress “cannot preserve presidential records merely for the sake of posterity.” The opinion then reaches for an analogy: “Just as Congress could not constitutionally invade the independence of the Supreme Court and expropriate the papers of the Chief Justice or Associate Justices, Congress cannot invade the independence of the President and expropriate the papers of the Chief Executive.”
Now hold that next to the statute. The operative sentence of the law, 44 U.S.C. § 2202, says “The United States shall reserve and retain complete ownership, possession, and control of Presidential records.” That is the whole fight. If the opinion is right, those records belong to the man in the Oval Office, and what survives of them is his call.
Then turn to footnote 13. There the office acknowledges that before the law passed, its own Deputy Assistant Attorney General, Lawrence A. Hammond, testified to a House subcommittee that the Supreme Court’s 1977 ruling in the Nixon papers case meant “it is within the appropriate ambit of Congress’ power to legislate with respect to the preservation of the historically valuable papers of the Chief Executive.” The office went further in 1978 and said that declaring the papers public property was “not subject to serious challenge.” The 2026 opinion disposes of all of that in nine words: “That advice has not withstood the test of time.”
It does not say what changed. The Constitution has not. The Supreme Court ruling has not been overruled. What changed is the client.
The opinion is not shy about that, either. In explaining how far it believes the law has strayed, it complains that “attempts have been made to subject a former President to criminal liability for his handling of presidential records,” and cites United States v. Trump, the Mar-a-Lago documents prosecution. That case never charged a Presidential Records Act violation; the law carries no criminal penalties. The 31 counts at its center were for willfully retaining national defense information under the Espionage Act, and the rest charged obstruction and false statements. The Office of Legal Counsel folded a classified-documents case into a records dispute, then used it as evidence that the records law itself is the problem. When an opinion written for the President lists the President’s own indictment among its grievances, you know whose interest the separation-of-powers language is serving.
The Supreme Court Already Heard This Argument
Richard Nixon made a version of this case and lost it. When he resigned in August 1974, he arranged for some 42 million pages and 880 tape recordings to be stored near his California home, under an agreement that let him order tapes destroyed. Congress overrode that deal with the Presidential Recordings and Materials Preservation Act, and Nixon sued, arguing among other things that the law violated the separation of powers.
The Supreme Court ruled against him 7 to 2 on June 28, 1977. Justice William Brennan’s opinion in Nixon v. Administrator of General Services held that the act “does not on its face violate the principle of separation of powers” and called Nixon’s position an “archaic view of the separation of powers as requiring three airtight departments of government.” Congress passed the broader Presidential Records Act the next year, covering every president from Ronald Reagan on.
The dissent is where you will find the administration’s argument today. Justice William Rehnquist warned that the ruling “countenances the power of any future Congress to seize the official papers of an outgoing President as he leaves the inaugural stand.” The 2026 opinion treats the majority’s broad statements as non-binding, on the ground that Nixon never raised a challenge to Congress’s Article I power, and it builds its case from material the dissenters would recognize. That is a legal strategy you are allowed to try. It is a strange thing to call settled.
The justices analogy has its own problem. Justices do keep their papers as private property, and Congress has never passed a judicial records law. But the president is the one official whose papers already went through this exact test at the Supreme Court, with the records of an actual departing president at stake, and the Court let Congress take them.
What Happens After Friday
The current order is Judge John Bates’s. On May 20 the federal judge in Washington, a George W. Bush appointee, sided with the American Historical Association and the watchdog group American Oversight, which sued over the opinion on April 6, found they were likely to win, and required the White House Office, the National Security Council, the Secret Service and presidential advisers to keep complying with the law. That included not conducting official business on disappearing-message apps without copying it to official accounts. He opened his ruling with George Orwell: “Who controls the past controls the future; who controls the present controls the past.” The White House’s position has not moved; spokeswoman Lauren Bis told NPR that “The Presidential Records Act is unconstitutional and a clear violation of the separation of powers.”
On appeal, the government is making a single argument: the law is facially unconstitutional in its entirety. A three-judge panel will hear it, and whoever loses is likely headed to the Supreme Court. Nikhel Sus, chief counsel at Citizens for Responsibility and Ethics in Washington, told NPR what a government win would mean in practice: “the people really have no right of access to the president’s papers.”
Here is where we come down. This is not a close question dressed up as a hard one; it is an easy one dressed up as a constitutional crisis. Every president since Reagan has lived under this law, the Justice Department told Congress it was sound, and the Supreme Court approved the same principle with Nixon’s own tapes on the table. The only new fact is a president who was indicted for how he handled government documents and whose lawyers now say the documents were his all along. The D.C. Circuit should affirm Judge Bates, and Congress should not wait for the Supreme Court to write the next chapter: tighten the law’s enforcement now, while there are still records to protect.
If you want a sense of what is at stake beyond the abstractions, our 2022 report on documents torn up and flushed during Trump’s first term is a reminder that this law has only ever been as strong as a president’s willingness to follow it. On Friday, a court gets to decide whether that willingness is optional.