[Update] Analysis of NARA’s Letter to Former President Trump
Why would the Trump team release a document that casts them in such a bad light?
Yesterday, the New York Times reported that the initial collection of documents turned over from Mar-A-Lago to the National Archives this past January contained more than 150 documents marked classified. The Times went on the report that combined with a second collection of materials that the former President’s aides provided in June and the collection of documents seized during the execution of the FBI warrant early this month the government has recovered over 300 documents marked classified from Trump this year. Then, late last night, Trump ally John Solomon published a copy of a National Archive letter sent to the former President in May regarding providing the Department of Justice with access to those the classified documents they had recovered to date. The letter, available through Solomon’s website, is relatively brief and accessibly written. I encourage folks to at least scan it before continuing to my analysis and commentary.
Ok, “spoilers” start here…
#1. The letter is focused on a request by the DoJ to turn over the documents and the question of executive privilege as it applies to former Presidents. We start to see the beginning of forming that argument in the second paragraph:
“In its initial review of materials within those boxes, NARA identified items marked as classified national security information, up to the level of Top Secret and including Sensitive Compartmented Information and Special Access Program materials. NARA informed the Department of Justice about that discovery, which prompted the Department to ask the President to request that NARA provide the FBI with access to the boxes at issue so that the FBI and others in the Intelligence Community could examine them. On April 11, 2022, the White House Counsel’s Office—affirming a request from the Department of Justice supported by an FBI letterhead memorandum—formally transmitted a request that NARA provide the FBI access to the 15 boxes for its review within seven days, with the possibility that the FBI might request copies of specific documents following its review of the boxes.”https://justthenews.com/government/courts-law/full-text-national-archives-letter-trump-classified-documents
A few paragraphs later, the Acting Archivist of the United States, Debra Steidel Wall, then summarizes the Trump team’s position on why the documents should not be shared due to executive privilege:
[Trump legal representatives’] April 29 letter asks for additional time for you to review the materials in the boxes “in order to ascertain whether any specific document is subject to privilege,” and then to consult with the former President “so that he may personally make any decision to assert a claim of constitutionally based privilege.” Your April 29 letter further states that in the event we do not afford you further time to review the records before NARA discloses them in response to the request, we should consider your letter to be “a protective assertion of executive privilege made by counsel for the former President.”https://justthenews.com/government/courts-law/full-text-national-archives-letter-trump-classified-documents
#2. The letter carefully documents every major action that has been taken by the Archives since the initial DoJ request and provides the accompanying statutory or legal basis for why that action is being taken. In this respect, its an incredible example of government transparency done well. Take for example, the third paragraph that explains the underlying protections for the documents of Former Presidents and, more importantly, why they don’t apply in this case.
Although the Presidential Records Act (PRA) generally restricts access to Presidential records in NARA’s custody for several years after the conclusion of a President’s tenure in office, the statute further provides that, “subject to any rights, defenses, or privileges which the United States or any agency or person may invoke,” such records “shall be made available . . . to an incumbent President if such records contain information that is needed for the conduct of current business of the incumbent President’s office and that is not otherwise available.” 44 U.S.C. §https://justthenews.com/government/courts-law/full-text-national-archives-letter-trump-classified-documents
Reading between the lines, the Archives recognizes how important and unprecedented this situation is and, accordingly, is ensuring that every “i” is transparently dotted and every “t’s” cross is clearly documented. This is, without a doubt, a good thing and flies in the face of the idea that this was part of some thrown-together rogue local effort to get a former President. In fact, the letter details how the President has been kept in the loop during this process, and “in light of the particular circumstances presented here, President Biden defers to my determination, in consultation with the Assistant Attorney General for the Office of Legal Counsel” (though I am sure Trump supporters will find this objectionable for… reasons).
#3. The letter’s timeline demonstrates how much leeway was given to former President Trump in order to make his case.
We advised you in writing on April 12 that, “in light of the urgency of this request,” we planned to “provid[e] access to the FBI next week,” i.e., the week of April 18. See Exec. Order No. 13,489, § 2(b), 74 Fed. Reg. 4,669 (Jan. 21, 2009) (providing a 30-day default before disclosure but authorizing the Archivist to specify “a shorter period of time” if “required under the circumstances”); accord 36 C.F.R. § 1270.44(g) (“The Archivist may adjust any time period or deadline under this subpart, as appropriate, to accommodate records requested under this section.”). In response to a request from another representative of the former President, the White House Counsel’s Office acquiesced in an extension of the production date to April 29, and so advised NARA. In accord with that agreement, we had not yet provided the FBI with access to the records when we received your letter on April 29, and we have continued to refrain from providing such access to date.
It has now been four weeks since we first informed you of our intent to provide the FBI access to the boxes so that it and others in the Intelligence Community can conduct their reviews. Notwithstanding the urgency conveyed by the Department of Justice and the reasonable extension afforded to the former President, your April 29 letter asks for additional time for you to review the materials in the boxes “in order to ascertain whether any specific document is subject to privilege,” and then to consult with the former President “so that he may personally make any decision to assert a claim of constitutionally based privilege.” Your April 29 letter further states that in the event we do not afford you further time to review the records before NARA discloses them in response to the request, we should consider your letter to be “a protective assertion of executive privilege made by counsel for the former President.”https://justthenews.com/government/courts-law/full-text-national-archives-letter-trump-classified-documents
The letter, which was dated May 10th, 11 days after the April 29th deadline had passed, shows how NARA went out of its way to provide deference to Trump. It also illustrates how, at the same time, Trump’s lawyers appeared to be doing everything in their power to drag the process out (including delivering their final appeal on the day that the Archives had set to turn the materials over to the DoJ). This documentation helps disarm two Trump defenders’ talking points: (1) “if these documents were so important, why did it take so long to recover them?” and (2) “The former President has not been respected through this process.
And speaking of talking points…
#4. The National Archives, citing the Assistant Attorney General for the Office of Legal Counsel, demonstrate why the claim of executive privilege does not hold up under legal scrutiny. This is the longest and most in-depth section of the letter, which makes sense as it’s the ultimate purpose of the letter. I’ll do my best to take it point by point. Acting Archivist Steidel Wall first begins by documenting how the determination was made:
I have consulted with the Assistant Attorney General for the Office of Legal Counsel to inform my “determination as to whether to honor the former President’s claim of privilege or instead to disclose the Presidential records notwithstanding the claim of privilege.” Exec. Order No. 13,489, § 4(a).https://justthenews.com/government/courts-law/full-text-national-archives-letter-trump-classified-documents
She then lays out the DoJ’s perspective:
The Assistant Attorney General has advised me that there is no precedent for an assertion of executive privilege by a former President against an incumbent President to prevent the latter from obtaining from NARA Presidential records belonging to the Federal Government where “such records contain information that is needed for the conduct of current business of the incumbent President’s office and that is not otherwise available.” 44 U.S.C. § 2205(2)(B).https://justthenews.com/government/courts-law/full-text-national-archives-letter-trump-classified-documents
Then the letter moves into relevant case history starting with the most relevant case on the topic of the limits of a former President’s executive privilege:
[T]the Supreme Court’s decision in Nixon v. Administrator of General Services, 433 U.S. 425 (1977), strongly suggests that a former President may not successfully assert executive privilege “against the very Executive Branch in whose name the privilege is invoked.” Id. at 447-48. In Nixon v. GSA, the Court rejected former President Nixon’s argument that a statute requiring that Presidential records from his term in office be maintained in the custody of, and screened by, NARA’s predecessor agency—a “very limited intrusion by personnel in the Executive Branch sensitive to executive concerns”—would “impermissibly interfere with candid communication of views by Presidential advisers.” Id. at 451; see also id. at 455 (rejecting the claim). The Court specifically noted that an “incumbent President should not be dependent on happenstance or the whim of a prior President when he seeks access to records of past decisions that define or channel current governmental obligations.” Id. at 452; see also id. at 441-46https://justthenews.com/government/courts-law/full-text-national-archives-letter-trump-classified-documents
She then, with a bit of snark, delivers her verdict:
The question in this case is not a close one. The Executive Branch here is seeking access to records belonging to, and in the custody of, the Federal Government itself, not only in order to investigate whether those records were handled in an unlawful manner but also, as the National Security Division explained, to “conduct an assessment of the potential damage resulting from the apparent manner in which these materials were stored and transported and take any necessary remedial steps.”https://justthenews.com/government/courts-law/full-text-national-archives-letter-trump-classified-documents
She even highlights how this decision helps preserve the powers of the office of the Presidency to execute its duties:
Ensuring that classified information is appropriately protected, and taking any necessary remedial action if it was not, are steps essential to preserving the ability of future Presidents to “receive the full and frank submissions of facts and opinions upon which effective discharge of [their] duties depends.” Id. at 449.https://justthenews.com/government/courts-law/full-text-national-archives-letter-trump-classified-documents
Some additional shorter take-aways:
- The letter lays out two reasons for the DoJ’s request for transfer: (1) “conduct[ing] an assessment of the potential damage resulting from the apparent manner in which these materials were stored and transported and take any necessary remedial steps. and (2) “for purposes of [the DoJ’s] ongoing criminal investigation.”
- There are more details about the types of documents recovered in January: “According to NARA, among the materials in the boxes are over 100 documents with classification markings, comprising more than 700 pages. Some include the highest levels of classification, including Special Access Program (SAP) materials.“
- As mentioned above, the frustration of the Archives with former President Trump and his legal team is palpable throughout the document. This is signaled from the beginning with the “As you are no doubt aware…”, continues through discussion of the Trump team’s footdragging “Notwithstanding the urgency conveyed by the Department of Justice and the reasonable extension afforded to the former President, your April 29 letter asks for additional time…”, the question at the heart of their claim “is not a close one” (that’s the closes you will get to a government official calling something “bullshit”), and beyond. The letter finishes with a subtle dig as well: “Please note that, in accordance with the PRA, 44 U.S.C. § 2205(3), the former President’s designated representatives can review the records, subject to obtaining the appropriate level of security clearance.” Let us not forget the problems a number of key advisors had with passing security reviews when President Trump was in office.
As this post is far longer than planned, I want to get to the question set up in the subhead: “Why would the Trump team release a document that casts them in such a bad light?” Simply put, to any rational reader this is not a good document for the former President from a legal or process perspective. While “hubris” is always an answer, I think Law Professor Orin Kerr has a stronger answer. Tweeting yesterday about the release of a different Trump filing he noted:
This morning he expanded on the point, adding:
As I said, I think Kerr is right. This is most likely part of a flood-the-zone defense. Time will tell if any coverage continues to remain useful coverage for the former President. Likewise, it will also be telling to see if and how Trump’s supporters will try to spin this in his favor (my best guess is it will involve Biden’s deferral of responsibility and the letter’s “nasty” tone written by a “nasty woman”).
[Update: 11:50am EST, 8/23]
While I promised myself I was going to avoid updating this post, I saw an observation on Twitter that I think is worth including here from Former White House Attorney Ryan Goodman (the rest of his thread echos a lot of the points I raised in the analysis):
Admittedly, we don’t have the communications from the Trump team to NARA (note that transparency has been largely just on the government’s side in the releases). However, given how carefully crafted this letter is to address issues raised by the Trump team, it feels unlikely that if they had mounted an argument about blanket declassification it would have been ignored.
Of course, mounting an argument in the space of public discourse and then never officially making the argument in official proceedings, is a familiar tactic for the Trump legal team.