Do Americans own the president's papers? Appeals court to weigh in

Six months ago, the Justice Department moved to invalidate the Presidential Records Act, a federal law in place since 1978. Conservative lawyer Michael Edney cast the move in a long line of other attempts to pare back statutes from that era.

"This is a story about a post-Watergate, overbroad statutory incursion into the prerogatives of the executive branch," Edney said in a recent webinar sponsored by the Federalist Society.

For some 200 years, presidents could decide for themselves what to do with the papers they created in office, until disputes with Richard Nixon prompted Congress to weigh in. Every president since then has complied with the records law, until this year.

"The Presidential Records Act is unconstitutional and a clear violation of the separation of powers," said White House spokeswoman Lauren Bis.

The White House's reinterpretation of the act comes after Trump was indicted on obstruction of justice charges for allegedly stockpiling classified documents in a bathroom, ballroom and office at his Mar-a-Lago resort. A federal judge threw out the case for technical reasons, related to the appointment of the prosecutor, and the Justice Department ultimately dropped the case after Trump won reelection.

Question about the public's right to papers

Nikhel Sus is chief counsel for Citizens for Responsibility and Ethics in Washington, a watchdog group that sued over the Trump move.

"If the courts were to accept it, and we are hopeful that they will not, it would mean the people really have no right of access to the president's papers and that would be a major loss for archivists, historians and to the American people writ large," Sus said.

Senior U.S. District Judge John Bates, an appointee of former President George W. Bush, ruled against the Trump White House this year, in a decision that opened with a passage from George Orwell's dystopian novel 1984: "Who controls the past controls the future; who controls the present controls the past," the judge wrote.

Three judges from the U.S. Court of Appeals for the D.C. Circuit will consider the issue on Friday.

The Trump administration said in court papers that keeping all those records imposes a burden on the White House and that it could chill advisers from having honest conversations with the president.

Continuity of government

But former government officials say being able to consult these papers is essential.

"Access to the records on national security issues of former presidents is really vital for the continuity of our government," said John Bellinger, who served as legal adviser to the National Security Council under George W. Bush.

Bellinger said he and other members of Bush's staff sometimes requested the papers of President Bill Clinton, to understand conversations Clinton had with world leaders and members of Congress.

"Often the only record of what a president has said to a foreign leader — or perhaps even more important, what a foreign leader, friend or foe, has said to the president of the United States — is in a written document," Bellinger said.

To not be able to see those papers, he said, will leave future presidents at a "terrible disadvantage."

Edney, who also worked for Bush's National Security Council and Justice Department, said he believed that Congress could probably pass a "thoughtful" records preservation statute. He said parts of the current Presidential Records Act that provide Congress with automatic access and presume the records will be publicly disclosed are "constitutionally problematic."

Edney said he has some doubts about whether the watchdog groups suing to challenge Trump's move actually have legal standing to proceed.

But the Trump administration appears to have breezed past those concerns, because they have a higher goal in mind.

"They want this to go to the Supreme Court," Edney said. "I think they want this resolved at a time of their choosing, with arguments of their choosing, and a court of their choosing, and with the Solicitor General's office that's making their arguments, as opposed to a subsequent administration."