The Presidential Records Act, Clinton's Socks, and Trump's Boxes

“...EVERYONE UNDERSTANDS THAT THE PRESIDENTIAL RECORDS ACT, PLUS THE CLINTON SOCKS CASE, TOTALLY EXONERATED ME FROM THE CONTINUING WITCH HUNT BROUGHT ON BY CORRUPT JOE BIDEN, THE DOJ, DERANGED JACK SMITH, AND THEIR RADICAL LEFT, MARXIST THUGS…”

--Donald Trump, June 15, 2023

The notion that presidents—and, for that matter, the rest of the federal government—must preserve their records is of recent vintage. Presidential records were traditionally considered the property of the president who created or received them. Many presidents bequeathed their papers to their heirs; some destroyed them. As former President William Howard Taft explained in 1915:

The Executive office of the President is not a recording office. The vast amount of correspondence that goes through it, signed either by the President or his secretaries, does not become the property or a record of the government, unless it goes on to the official files of the Department to which it may be addressed. The retiring President takes with him all of the correspondence, originals and copies, which he carried on during his administration.

In 1950, Congress passed the Federal Records Act, which requires federal agencies—but not the President—to preserve their records. Five years later, Congress passed the Presidential Libraries Act, which encouraged (but did not require) former presidents to donate their records to private, federally maintained libraries. 

Then came Richard Nixon. Four months after Nixon resigned in disgrace, Congress—concerned that he would destroy key papers—enacted the Presidential Recordings and Materials Preservation Act just four months after his resignation, which required that the Archivist of the United States take into custody all of Nixon’s presidential records.  

(Nixon, being Nixon, fought back, filing suit the day after President Ford signed the legislation. After the Supreme Court upheld the law’s constitutionality, Nixon filed a separate lawsuit in 1980 demanding compensation under the Takings Clause of the Fifth Amendment. In 1992, the D.C. Circuit agreed that he was entitled to compensation. Nixon died in 1994, and in 2000 his estate settled with the U.S. government for $18 million.)

Then in 1978, Congress enacted the Presidential Records Act, establishing for all time that presidential records belong to the nation the president serves. The Act provides that “[t]he United States shall reserve and retain complete ownership, possession, and control of Presidential records.” While president, the president is responsible for maintaining his records. Upon leaving office, that responsibility passes to the U.S. archivist, who “shall assume responsibility for the custody, control, and preservation of, and access to, the Presidential records of that President.”  

The PRA defines presidential records as materials “created or received by the President, the President’s immediate staff, or a unit or individual of the Executive Office of the President whose function is to advise or assist the President, in the course of conducting activities which relate to or have an effect upon the carrying out of the constitutional, statutory, or other official or ceremonial duties of the President.” The PRA excludes from this definition official agency records, which are covered by the Federal Records Act.

The PRA also excludes personal records, which it defines as materials “of a purely private or nonpublic character which do not relate to or have an effect upon the carrying out of the constitutional, statutory, or other official or ceremonial duties of the President.” 

Now let’s examine the famous CLINTON SOCKS CASE, which Trump insists exonerates him.  Key point: the case is not about Bill Clinton’s cat named Socks, who generally avoided litigation and partisan controversy (with one exception). Rather, it involves tape recordings of conversations between President Clinton and historian Taylor Branch intended to serve as a personal diary of sorts, and which eventually formed the basis of Branch’s 2009 book, “The Clinton Tapes.” According to Branch, Clinton would store the tape recordings in his sock drawer for safekeeping and to ensure that staff didn’t find, and possibly leak, the tapes.  

In 2010, the right-wing public interest group Judicial Watch sued the National Archives and Records Administration, demanding that it obtain custody of the tapes and deposit them in the Clinton Presidential Library. Judicial Watch argued that Clinton should have included the tapes among the records transferred to NARA at the end of his presidency, and that NARA had to take steps to obtain the records. Judge Amy Berman Jackson dismissed the case because Judicial Watch did not identify anything that NARA could do to retrieve the tapes from Clinton. Judge Jackson further noted that NARA was powerless to classify the records as presidential: “the PRA does not confer any mandatory or even discretionary authority on the Archivist to classify records.” Finally, Judge Jackson was “not so sure” whether the tapes should have been deemed presidential records, given that the PRA’s definition excludes “personal notes serving as the functional equivalent of a diary or journal which are not prepared or utilized for, or circulated or communicated in the course of, transacting Government business.”  

Trump’s post-arraignment speech was likely the first time a president quoted multiple sentences from a decade-old federal district court opinion. Trump latched onto the court’s conclusion that only the President could determine whether records were presidential or personal:

Not only was Bill Clinton never even considered for criminal prosecution based on the tapes he took, but when he was sued for them, he won the case. Judge Amy Berman Jackson’s decision states: “Under the statutory scheme established by the Presidential Records Act, the decision to segregate personal materials from Presidential records is made by the President during the President’s term, and in the President’s sole discretion.” You’re surprised to hear that aren’t you

Any normal administration, even an opposing one, would consider that to be the end, but not the corrupt Biden administration. The Socks decision, as it’s known, also states: “The National Archives and Records Administration, or NARA, does not have the authority to designate material as ‘Presidential records.’”  . . .  “NARA does not have the tapes in question, and NARA lacks any right, duty, or means to seize control of them.” This is law. “[T]he President enjoys unconstrained authority to make decisions regarding the disposal of documents. . . . “[N]either the Archivist nor Congress has the authority to veto the President’s decision.”

The Presidential Records Act “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 of the United States.” Think of that. That’s the decision. Think of that. Now, just think of that. In other words, whatever documents a president decides to take with him, he has the right to do so. It’s an absolute right. This is the law. And that is something that people have now seen and it couldn’t be more clear. They ought to drop this case immediately because they’re destroying a country.

As usual, Trump was nowhere near the target. The indictment does not allege any violation of the Presidential Records Act. Rather, it alleges that Trump violated (among other things) the Espionage Act. Yet Trump appears to believe that he can be subject to only one requirement at a time. The ban on willful retention of national defense information purports to apply to everyone. The Presidential Records Act, by contrast, applies only to presidents. Does the latter exempt a president from the former? 

Of course not. Consider a different example: the Sarbanes-Oxley Act of 2002 requires CEOs of publicly traded companies to certify the accuracy of information provided in their companies’ financial reports.  No one would suggest that this requirement somehow exempts CEOs from the generally applicable requirement not to embezzle company funds.  Presidents, like CEOs, are subject to some requirements by virtue of their position, and other requirements because they apply to all of us.

As Andy McCarthy put it in The National Review, 

If lawmakers intended the PRA to modify the Espionage Act such that presidents were immune from the latter, they would have said so. They did not. No surprise there: The provisions address vastly different matters and can easily be read in conjunction.

The PRA is a civil-law statute to provide guidance for the archiving of presidential records. The Espionage Act is a criminal statute prescribing severe penalties against people, including top government officials, who mishandle national-defense information. When statutes can sensibly be read harmoniously, they are not supposed to be construed as if they were antithetical. Here, the two provisions can easily be read harmoniously; indeed, it is Trump defenders who must strain mightily to claim there is any conflict. There is not a shred of a basis to believe that Congress, without mentioning it, was modifying the Espionage Act when, 60 years later, it passed the PRA—which is no doubt why, up until now, in the near half-century that the PRA has been on the books, no one has suggested such a thing.

Furthermore, Trump is both trying to use the PRA as a shield and essentially claiming to have violated it.  Classified documents are obviously not “personal records.”  And indeed there is no evidence that, while president,  he actually categorized classified documents as personal records. Finally, the indictment strongly suggests that most—and possibly all—of the documents in question were actually agency records, prepared by agencies and at some point shown to the president, which are governed by the Federal Records Act, not the PRA.

It appears that Trump is attached to this bizarre reading of the PRA almost as much as he is to his beloved boxes. CNN has reported that the idea has been rattling in his head since February 2022, when the head of Judicial Watch, Tom Fitton, contacted Trump shortly after the Archives confirmed a Washington Post report that Trump had returned 15 boxes. Fitton reportedly told Trump about the Clinton case and suggested that he need not return anything because the Archives had no means of obtaining them over his objections.

It could have ended there. Fitton, as many have noted, is not even a lawyer. But Trump reportedly arranged for Fitton to speak to his actual lawyers. Thereafter, the Clinton case made its way into Trump’s briefs as he tried to grind the Justice Department’s investigation to a halt before Judge Aileen Cannon, the special master that she appointed, and the Eleventh Circuit (which eventually put an end to this escapade by holding that Judge Cannon had no jurisdiction to appoint a special master or to block the Justice Department from using the documents seized at Mar-a-Lago). Whereas Trump’s lawyers conspicuously declined to assert in court his dubious claim that he had declassified the documents in question, they appeared to have no such qualms about advancing his equally-suspect PRA arguments 

The Justice Department briefs in the special master litigation explained, in tones of increasing exasperation, the folly of Trump’s argument:

[F]or the reasons already explained by the government, the single district court decision relied upon by Plaintiff, Judicial Watch v. National Archives and Records Administration, 845 F. Supp. 2d 288 (D.D.C. 2012), provides no support for Plaintiff’s upside-down reading of the PRA. . . . The dispute in Judicial Watch concerned whether a third party has a civil mechanism to enforce alleged violations of the PRA or whether—as the government maintained—that responsibility rests solely with NARA and the Attorney General. Nothing in the Judicial Watch civil litigation presented the question of whether the PRA somehow exempts former Presidents from the obligation to comply with criminal laws, including laws prohibiting the unlawful retention of national defense information and obstruction of justice.

In reversing Judge Cannon, the Eleventh Circuit did not address the PRA arguments, because it held that she had no jurisdiction to hear the case in any event.

The Mar-a-Lago classified documents litigation is not Trump’s first tussle with the PRA. While in office, Trump reportedly had a penchant for tearing up documents that needed to be preserved in order to comply with the PRA. Aides would race to restore the leftover pieces and try to tape them together. The Archives confirmed that it received some taped-together records at the end of the Trump administration “along with a number of torn-up records that had not been reconstructed.”

And Trump has already lost one high-stakes court battle involving the PRA. The Jan. 6 Committee requested from the Archives presidential records pertaining to the events of Jan. 6 under a provision in the PRA that requires disclosure of presidential records—even where not yet available to the public—to a congressional committee “if such records contain information that is needed for the conduct of its business and that is not otherwise available.” Trump argued that, among other things, the information requested was not needed for the Committee’s business and that the request should be denied because the materials were protected by executive privilege. (As a lawyer representing the Jan. 6 Committee, I worked on the briefs in opposition to Trump.) Trump lost before the district court, lost before the D.C. Circuit, and lost before the Supreme Court.

It's anybody’s guess whether Trump’s lawyers will repeat these absurd arguments about the PRA as the Mar-a-Lago case proceeds to trial. If they do, it won’t necessarily be because their client knows nothing about the law (although he doesn’t). It will be because Trump, for all his folly, knows that his literal get-out-of-jail-free card is winning the presidency. If he wins, he could order the Justice Department to drop the case, grant himself a self-pardon, and/or (if he is already imprisoned) file a petition for a writ of habeas corpus that would almost certainly result in his release. If Trump—who knows his supporters better than legal pundits do—concludes that making a fantastical argument about the PRA will help keep his supporters from jumping ship, then we are doomed to hear or and read much more of this nonsense as the case makes its way to trial.