Michael Bekesha makes a point in his op-ed in the Wall Street Journal:
This should never have happened. 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.
In 2009, historian Taylor Branch published “The Clinton Tapes: Wrestling History With the President.†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. 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.
When Judicial Watch made a FOIA request for the tapes and they lost on these ground:
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.â€
That is very closely related to the point I’ve made in several posts about the constitutionality and enforceability of the PRA.
Said another way the charges filed against President Trump are not open and shut. I’m not staking a position out one way or the other—just pointing out that it’s complicated and may not be settled law.
Same charges can be filed in New Jersey regardless as long as the same party holds the Presidency.
Even without a win it becomes a battle of attrition.
Trump flies in his own plane, then asks supporters for money.
Joe Biden flies at the public’s expense for 50 years and does the same. Attrition.
I dont believe any of the records the guy mentioned were marked as confidential. From what has been released there have been no charges about any papers that were not confidential.
Steve
Dave Schuler: That is very closely related to the point I’ve made in several posts about the constitutionality and enforceability of the PRA.
So, the argument is that the war plans and nuclear secrets developed by the Department of Defense are Trump’s personal records and not government product? That’s preposterous. The Presidential Records Act requires the president to surrender any government records when leaving office. There may be gray zones, but this isn’t one of them.
Regardless, the law at issue is not the Presidential Records Act. The records are actually covered by the Federal Records Act, though that isn’t the law at issue either, but the Espionage Act and Protection of Records in Federal Investigations.
The government went to court for a subpoena for documents relating to the national defense and other grounds with probable cause that Trump was illegally retaining such documents per 18 U.S.C. §§ 793 & 1519. Once the court issued the subpoena, Trump could have contested the subpoena, but on what possible grounds? They tried the he might have declassified the records, but he didn’t actually claim he did. Instead, Trump allegedly conspired to subvert the subpoena.
There is no ambiguity.
Read Joyner’s piece. This guy is essentially lying.
Steve
OTB has a collection of counter-essays that contradict this one. Taken together, it’s not really clear to me what authority the National Archives has under the PRA and what judicial oversight actually exists.
I think the biggest problem for Trump is not the PRA, but the Espionage Act.
Note that I’m not claiming that Trump will go scot free. I’m saying it’s not a foregone conclusion that he will actually stand trial or that if tried he will be convicted. The law on this is far from clear.
Basically, it’s what I’ve been saying all along: don’t be surprised at how little the law actually does.
WRT the Espionage Act of 1917 I don’t believe it’s clear that it applies to the president.
Dave,
The law on classified material is very clear. You’re right, I think, that the Espionage Act doesn’t apply to the President. Trump’s alleged crimes took place when he was no longer President. Trump has no special status to avoid the Espionage Act as an ex-President. There are dozens of examples of people who basically did what he did who were convicted or pleaded guilty and went to jail.
The difficulty in prosecuting him is more about power and money, and Trump has lots of both.
The Espionage Act? Seriously, people?
Drew: The Espionage Act? Seriously, people?
Trump, a private citizen, also violated the law by conspiring to hide evidence during a criminal investigation, allegedly.
Moderation queue, please.
Andy:
If the Espionage Act didn’t apply to President Trump during his presidency, I don’t see how it can apply to him for documents taken while president. If that were the case, you should be able to charge every recipient of information from every leaker. The NYT wasn’t charged for publishing (part of) the Pentagon Papers.
Dave Schuler: If the Espionage Act didn’t apply to President Trump during his presidency, I don’t see how it can apply to him for documents taken while president.
Because Trump willfully retained and failed to deliver it to the officer or employee of the United States entitled to receive it: 18 U.S. Code § 793(e).
I think it’s important we have the facts straight. From what info we seem to know Trump willfully took confidential papers, showed them to unauthorized people, lied about having them and refused to return them.
The PRA explicitly excepts agency papers and the Espionage Act should apply to a president no longer in office. Will he be convicted? I dont think so. This will end up at SCOTUS and they will protect him.
Dave- I think there are exceptions for the press but mostly they didnt steal them. Remember that they di initially charge Ellsberg as he was the one who took them. They dropped the charges after they found what Nico et al had done.
Steve