Trump and the Presidential Records Act

A legal defense without merit.

Over the weekend, I pointed to a shameful editorial by the WSJ Editorial Board arguing that the indictment of former President Donald Trump was political and bad for the country. Among other things, it asserted that “the Presidential Records Act (PRA) . . . allows a President access to documents, both classified and unclassified, once he leaves office,” an assertion I dubbed “simply embarrassing nonsense.”

I’m continuing to see defenses of Trump based on the PRA. Among the more interesting is an op-ed in today’s WSJ by Judicial Watch’s Michael Bekesha titled “Trump’s Boxes and Clinton’s Sock Drawer.” The core of the argument:

The Presidential Records Act allows the president to decide what records to return and what records to keep at the end of his presidency. And the National Archives and Records Administration can’t do anything about it. I know because I’m the lawyer who lost the “Clinton sock drawer” case.


The White House made the audiotapes. Nancy Hernreich, then director of Oval Office operations, set up the meetings between Messrs. Clinton and Branch and was involved in the logistics of the recordings. Did that make them presidential records?

The National Archives and Records Administration was never given the recordings. As Mr. Branch tells it, Mr. Clinton hid them in his sock drawer to keep them away from the public and took them with him when he left office.

My organization, Judicial Watch, sent a Freedom of Information Act request to NARA for the audiotapes. The agency responded that the tapes were Mr. Clinton’s personal records and therefore not subject to the Presidential Records Act or the Freedom of Information Act.

We sued in federal court and asked the judge to declare the audiotapes to be presidential records and, because they weren’t currently in NARA’s possession, compel the government to get them.

In defending NARA, the Justice Department argued that NARA doesn’t have “a duty to engage in a never-ending search for potential presidential records” that weren’t provided to NARA by the president at the end of his term. Nor, the department asserted, does the Presidential Records Act require NARA to appropriate potential presidential records forcibly. The government’s position was that Congress had decided that the president and the president alone decides what is a presidential record and what isn’t. He may take with him whatever records he chooses at the end of his term.

Judge Amy Berman Jackson agreed: “Since the President is completely entrusted with the management and even the disposal of Presidential records during his time in office,” she held, “it would be difficult for this Court to conclude that Congress intended that he would have less authority to do what he pleases with what he considers to be his personal records.”

Judge Jackson added that “the PRA contains no provision obligating or even permitting the Archivist to assume control over records that the President ‘categorized’ and ‘filed separately’ as personal records. At the conclusion of the President’s term, the Archivist only ‘assumes responsibility for the Presidential records.’ . . . PRA does not confer any mandatory or even discretionary authority on the Archivist to classify records. Under the statute, this responsibility is left solely to the President.”

I lost because Judge Jackson concluded the government’s hands were tied. Mr. Clinton took the tapes, and no one could do anything about it.

The same is true with Mr. Trump. Although he didn’t keep records in his sock drawer, he gathered newspapers, press clippings, letters, notes, cards, photographs, documents and other materials in cardboard boxes. Then Mr. Trump, like Mr. Clinton, took those boxes with him when he left office. As of noon on Jan. 20, 2021, whatever remained at the White House was presidential records. Whatever was taken by Mr. Trump wasn’t. That was the position of the Justice Department in 2010 and the ruling by Judge Jackson in 2012.

I must confess that, while I was rather rabidly anti-Clinton and believed and continue to believe that he was not only rightly impeached but should have been removed from office, that I had no recollection of the sock drawer case. Indeed, though I had been blogging for nearly a decade by that point, if OTB ever referenced it, I can’t find it. (There are several references to Amy Berman Jackson but all are from the Paul Manafort and Roger Stone cases.)

A bit of quick research, though, would seem to indicate that Bekesha is playing fast and loose with the facts. Looking at the opinion, it’s rather clear that Judicial Watch was suing NARA to force it to demand Clinton’s tapes. While I tend to agree with Bekesha that the recordings in question were Presidential Records, not personal effects, and should have been turned over to the Archivist, Judge Jackson rightly notes that the Archivist is the one charged under the law with making that determination and that nothing in the PRA gives the courts authority to countermand that decision. Essentially, the ruling was simply that Judicial Watch didn’t have standing to sue in the case, not that Clinton could do whatever the hell he wanted with Presidential Records. Indeed, the whole point of the PRA was to require Presidents (starting with Ronald Reagan) to preserve public records and to turn them over to the National Archives upon departing office.

PolitiFact’s Amy Sherman:

Bradley Moss, a Washington-based lawyer who works on national security cases, said Trump’s allies have misconstrued the Clinton socks case.

The socks ruling addressed whether a private party — Judicial Watch — could get a court to order the archivist to determine whether Clinton had improperly designated the audiotapes recorded during his presidency as personal.

​​”The court concluded that the Presidential Records Act did not give the judiciary that authority to require that of the Archivist,” Moss said in an email to PolitiFact. “This alternate dimension Mr. Trump thinks exists because of the case in which he can do whatever he wants with records from his presidency insulated from other statutory provisions like the Espionage Act is the stuff of lunacy.”


Jason R. Baron, former litigation director at the National Archives and Records Administration, also told PolitiFact that the Clinton recordings fit the definition of a “personal record.” 

“In contrast, the boxes of records taken to Mar-a-Lago appear to overwhelmingly contain records pertaining to the official business of the White House, and therefore should have been transferred immediately into the legal custody of NARA as presidential records,” Baron said.

Baron said, “No prior case has held that a president has absolute discretion to designate official government records — classified or unclassified — as his own personal records.”

Jackson’s ruling cited a prior appeals court opinion that said, “We did not hold (in a prior case) that the President could designate any material he wishes as presidential records, and thereby exercise virtually complete control over it notwithstanding the fact that the material does not meet the definition of ‘presidential records.’” 

Baron said, “it would contravene the very reason Congress created the Presidential Records Act were a court to allow a president to designate official records as his own personal records to do with what he pleases.”

Harvard Law professor Jack Goldsmith (who served in the Bush Administration’s Office of Legal Counsel), writing in August 2022, shortly after the FBI raid of Mar-a-Lago:

The PRA says that “upon the conclusion of a President’s term of office, … the Archivist … shall assume responsibility for the custody, control, and preservation of, and access to, the Presidential records of that President.” More importantly, it says that the United States “shall reserve and retain complete ownership, possession, and control of Presidential records.” The PRA also says that the archivist “shall deposit all such Presidential records in a Presidential archival depository or another archival facility operated by the United States” (emphasis added). 

The PRA thus makes clear that only the United States (and not former President Trump) owns and is authorized to possess and control the presidential documents. And it specifies that the archivist assumes “responsibility for the custody [and] control” of presidential records at the end of a presidential term, and must deposit them in an archival facility operated by the United States. The PRA gives a former president certain rights to access and limit access to the documents in the possession of the United States, but it rules out the possibility of a former president possessing presidential records after his presidential term.

Rivkin and Casey claim that the PRA “doesn’t address the process by which a former president’s records are physically to be turned over to the archivist, or set any deadline, leaving this matter to be negotiated between the archivist and the former president.” True. But the absence in the PRA of a “process” or “deadline” for a former president to transfer records to the archivist is irrelevant to whether former President Trump has or ever had lawful possession. Again, the records are by statute owned and controlled by the United States, not the former president. Even if the documents are not in actual possession of the archivist at the end of a presidential term, the PRA makes clear that the former president has no claim, none, to keep the documents for himself. They are not his documents to take, or keep, or negotiate the transfer of.

Beyond all that, it’s also worth noting that the classified documents at the heart of the Espionage Act charges aren’t Presidential Records at all but rather the property of the originating agencies, which are required to preserve them under the separate Federal Records Act.

Charlie Savage and Alan Feuer for the NYT (“Trump’s ‘Muddled’ Claims About the Presidential Records Act, Explained“) in September 2022:

Steven Aftergood, a government secrecy specialist with the Federation of American Scientists, called the Trump team’s discussion of the act “a lot of smoke,” adding, “One runs the risk of taking these arguments more seriously than they deserve, and from my point of view they are muddled, confused and have a tendency to draw unwarranted conclusions.”


Among their assertions, Mr. Trump’s lawyers have claimed that he could have deemed the most disputed documents — more than 100 records marked as classified — as his own personal property, the National Archives could not second-guess him, and even courts would have “very limited judicial oversight over such categorization.”

They have also intimated that because the Presidential Records Act gives former presidents and their representatives a right to have access to presidential records from their time in office, there was no problem with Mr. Trump keeping them, including classified ones, at Mar-a-Lago.

And they have claimed that the Presidential Records Act lacks any criminal enforcement mechanism, so it was improper for the Justice Department to open a criminal investigation into Mr. Trump’s handling of sensitive government documents.

No, said Margaret Kwoka, an Ohio State University professor who specializes in information law.

To start, presidents also routinely handle documents produced by departments and agencies like the Pentagon and the C.I.A. As agency records, they are instead governed by the Federal Records Act, which has no provision allowing a president to declare any to be his personal property.

The Presidential Records Act states that presidential records do not include “official records of an agency.” A 1993 ruling by the Court of Appeals for the District of Columbia Circuit says the law avoids any “potential definitional overlap” by making clear that if a document qualifies as an agency record, that trumps any possibility it could also be considered a presidential record.

“Certainly anything produced by an agency and given to a president would be considered an agency record,” Ms. Kwoka said.

Mr. Aftergood agreed that agency records keep that status even when brought into the White House.


A broader problem would arise if any of the documents at issue are agency records, which are not subject to the Presidential Records Act even if they are shown to the president, agreed Mark J. Rozell, an information law specialist at George Mason University and the dean of its Schar School of Policy and Government.

“He can’t just willy-nilly declare agency records to be his personal property,” Mr. Rozell said.


The Trump legal team has argued in various filings that the Presidential Records Act lacks an enforcement mechanism for resolving document disputes between the head of the National Archives, known as the archivist, and a former president. Sometimes the lawyers declared that without qualification; other times they have said it has no “criminal” enforcement mechanism.

“The government reads into the Presidential Records Act an enforcement provision that does not exist; the law exhorts a former president to interface with the archivist to ensure the preservation of presidential records, but it does not oblige the former president to take any particular steps with respect to those records,” they wrote in an Aug. 31 filing, for example.

But the act does have an enforcement mechanism, according to Judge Jackson’s 2012 ruling. A provision of it, she noted, bestows the archivist “with authority to invoke the same enforcement mechanism found in another statute, the Federal Records Act.” That law says that the archivist can ask the Justice Department to initiate an action to recover missing records — exactly the sequence of events that took place.

The Federal Records Act does not specify whether such an action should be a lawsuit or a criminal investigation. But it goes on to say that the department may also seek “other redress provided by law.”

There are criminal laws empowering the government to retrieve records from people who have no legal right to be holding them. The search warrant cited several, including the Espionage Act, which criminalizes the unauthorized retention of documents related to the national defense, which could harm the United States or aid a foreign nation.

“Whether or not it is a presidential record doesn’t answer the question of whether he would be required to turn it over to the Justice Department if it’s demanded, because it still relates to the national defense,” said Peter M. Shane, a legal scholar in residence at New York University and a specialist in separation-of-powers law.

Like so many other things related to the Trump presidency, the problem is that the Constitution and laws of the land begin with the assumption that the President of the United States is a fundamentally decent human being who takes his oath of office seriously. There have certainly been Presidents who don’t quite meet those standards but none have been anything close to Trump in their sheer and utter disregard for the rule of law. And so here we are.

FILED UNDER: Law and the Courts, , , , , , , , , , , , , , , , ,
James Joyner
About James Joyner
James Joyner is Professor and Department Head of Security Studies at Marine Corps University's Command and Staff College. He's a former Army officer and Desert Storm veteran. Views expressed here are his own. Follow James on Twitter @DrJJoyner.


  1. Matt Bernius says:

    James, thanks for writing about this. I almost did this morning, but I don’t have access to the Journal. I’ll also add to the list of thorough debunkings of that editorial, this Twitter thread by noted liberal (/s) Ed Whelan of the NRO.

    This is a good time to remind folks that editorials are not run by a fact-checker.

  2. Kathy says:

    There doesn’t seem to be any mention of what the nefarious Clinton tapes hold.

    According to Politifact:

    When Clinton was president, he was interviewed dozens of times by historian Taylor Branch to create an oral history of his presidency from 1993 to 2001.

    CBS, GQ and USA Today wrote that Clinton kept the audiotapes in his sock drawer. In 2009, Branch published a book titled, “The Clinton Tapes: Wrestling History with the President.”

    It seems to me the good people (wink, wink) at Judicial Watch could have read the book, and not wasted the court’s time.

    Or maybe they should look at this

  3. James Joyner says:

    @Kathy: I could preach it either way as to whether official White House recordings of Clinton’s conversations in the White House while President about his presidency are Presidential Records or mere souvenirs of his time in office but would certainly lean toward the former. (I would lean the other way if Branch had simply put a tape recorder town to record the conversations for the book.) Since they were recorded by the White House staff, though, it seems to me they should be public property and available in the Clinton Library for future scholars.

  4. Modulo Myself says:

    Trump was treated like a VIP, and the people trying to rationalize it in terms of Clinton-units, which is the sole measurement for corruption these people understand, are pretending that he was not given all of the benefit of doubt that Hillary or Bill ever was. If any normal person left their job and took off with classified docs like Trump the Justice Department would not have been reaching out to their lawyer for a year. Trump managed to push past the leeway given to Colin Powell or Hillary Clinton and was treated accordingly and Clinton-units of measurement do not matter.

  5. Kathy says:

    @James Joyner:

    I would focus on the content and context. These are interviews Bill gave for a book, which was written and got published. Not classified material, nor Nixon-style paranoid records of all that went on in the oval office.

    They have value as primary historical sources. As such, they should be preserved and made accessible. As far as I know, they are still around, and may be made accessible in the future.

    Point is they’re neither an urgent nor sensitive matter, and definitely do not involve national security.

  6. Jen says:

    I find it incredibly frustrating that the WSJ chose to print something so inherently dishonest and misleading. Judicial Watch is just spewing garbage, and it’s irresponsible of the WSJ to provide their platform as a place to do so.

    @Matt Bernius: While few are run by a fact checker, I have ghost-written a few op-eds, and there are some papers that do insist on providing sources for statements, so the Journal really did choke on this one. This is a very bad look for what used to pass as a premier paper.

  7. Just nutha ignint cracker says:

    @James Joyner:

    Since they were recorded by the White House staff, though, it seems to me they should be public property and available in the Clinton Library for future scholars.

    That does not appear to be the case, though.

    Clinton approached Branch shortly after his election to the presidency in 1992, asking whether Branch would agree to be his in-house historian, his “Arthur Schlesinger.” Instead, Branch proposed to help Clinton create an unfiltered, verbatim, contemporaneous record that would be under his sole control, in order to encourage maximum candor. In a quickly established pattern, Branch would be periodically summoned from his home in nearby Baltimore, often on short notice, whenever Clinton had an opening in his calendar. To avoid scrutiny in the fishbowl of the West Wing, the sessions were generally scheduled for late in the evening. Branch would be escorted by White House butlers and ushers upstairs to the president’s private office, called the Treaty Room, or to the family kitchen, the Truman Balcony, or perhaps the family parlor next to the president’s bedroom. At the end of every session, which usually lasted about two hours, Branch handed Clinton the only two copies of each tape, which Clinton put in what he called “a good hiding place” – his sock drawer. [emphasis added]

    On the other hand, Clinton seems to have wanted to have his cake and eat it too:

    Branch, a longtime friend of Clinton’s, served as his secret diarist, tape-recording intense, often wry, occasionally strained late-night conversations about virtually every major event, issue, and personality of Clinton’s two terms – everything the president thought and felt privately but was not able to say in public.

    Their primary goals were to preserve uncensored raw material for future historians, and to provide a basis for Clinton’s post-presidential memoir.

    The best way for meeting the supposed primary goal of “preserv[ing] uncensored raw material for future historians” would seem to be to have given the tapes to the Clinton Library. The suit would seem to indicate that such a gift didn’t happen.

    Still, given that the recordings appear to have been private between Branch and Clinton, I would say that they become “Presidential records” if and when Bill or his heirs hand them over. (Of course, I’m open to this being simply another case of Clintons being lying sacks of crap. And as soon as anybody can prove that is the case here, they can sue for another bite of the apple as far as I’m concerned.)

  8. Matt Bernius says:


    @Matt Bernius: While few are run by a fact checker, I have ghost-written a few op-eds, and there are some papers that do insist on providing sources for statements, so the Journal really did choke on this one. This is a very bad look for what used to pass as a premier paper.

    Unfortunately, the Wall Street Journal Editorial Page has been hot garbage for years (at least when it comes to partisan takes). Which is very different from their newsroom.

    And to your broader point about premier papers, the WSJ is far from the only premier outlet with these issues. Honestly, the New York Times is as bad, if not worse, in this department.

  9. James Joyner says:

    @Kathy: @Just nutha ignint cracker: Granted that I’m skeptical of Bekesha’s account, but here’s what he claims in the op-ed:

    The book is based on recordings of Mr. Branch’s 79 meetings with Bill Clinton between Jan. 20, 1993, and Jan. 20, 2001. According to Mr. Branch, the audiotapes preserved not only Mr. Clinton’s thoughts on issues he faced while president, but also some actual events, such as phone conversations. Among them:

    • Mr. Clinton calling several U.S. senators and trying to persuade them to vote against an amendment by Sen. John McCain requiring the immediate withdrawal of troops from Somalia

    • Mr. Clinton’s side of a phone call with Rep. William Natcher (D., Ky.) in which the president explained that his reasoning for joining the North American Free Trade Agreement was based on technical forecasts in his presidential briefings.

    • Mr. Clinton’s side of a phone conversation with Secretary of State Warren Christopher about a diplomatic impasse over Bosnia.

    • Mr. Clinton seeking advice from Mr. Branch on pending foreign-policy decisions such as military involvement in Haiti and possibly easing the embargo of Cuba.

    The White House made the audiotapes. Nancy Hernreich, then director of Oval Office operations, set up the meetings between Messrs. Clinton and Branch and was involved in the logistics of the recordings

    Assuming this is reasonably factual, this strikes me as rather clearly a Presidential Record. I get why the Archivist wasn’t going to create a stink over the matter several years hence, though, and presume Judge Jackson’s interpretation of Judicial Watch’s standing to sue and her power to order the Archivist to declare the tapes Presidential Records is correct.

  10. Gustopher says:

    It’s a flurry of bullshit to taint the jury pool — or keep 40% of the potential jury pool freshly tainted, as they are hungry for fresh taint.

  11. Kurtz says:


    hungry for fresh taint

    Why? Whhhhyyyyy?

  12. Charley in Cleveland says:

    Judicial Watch is the vexatious litigation arm of the Republican party. JW and the WSJ editorial crew were shocked, SHOCKED! at Bill Clinton’s mendacity (about BJs in a politically motivated and funded lawsuit that was dismissed on summary judgment), but stood (and stand) silent in the backwash of Donald Trump’s misfeasance, malfeasance, tsunami of lies and rampant bullshit.

  13. Beth says:


    I love you.

  14. Kurtz says:

    @Charley in Cleveland:

    misfeasance, malfeasance, tsunami of lies and rampant bullshit

    I travel hundreds of miles to camp out overnight at a local music shop to buy two copies of an LP called Misfeasance, Malfeasance, and Rampant Bullshit by a punk band called Tsunami of Lies.

  15. Raoul says:

    JJ: if the last twenty years have taught you anything, it is that the Clinton impeachment was a political farce. Obviously, Clinton’s behavior was contemptible, but in the grand scheme of things, lying about a blowjob with another consenting adult is remarkably insignificant. You need to get over yourself and see whole picture and understand what the process was all about. If you still are confused, why don’t you revisit Starr’s actions on sex violence at Pepperdine and Baylor. At least you can answer yourself the question of which are the more reprehensible acts, rapes or consensual sex. However, not only did Starr didn’t do a thing, he actively engineered a cover-up. So spare me.