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.
Is the Presidential Records Act the only relevant law?
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.