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Trump’s ‘Muddled’ Claims Concerning the Presidential Records Act, Explained


WASHINGTON — Lawyers for former President Donald J. Trump have repeatedly invoked the Presidential Records Act in expressing grievances concerning the F.B.I.’s search of his Florida residence and club last month to retrieve government documents, including some marked as highly classified.

Despite being highlighted of their legal arguments, nonetheless, the law has not played a significant role within the litigation up to now. The Justice Department has largely brushed off the subject, and Judge Aileen M. Cannon didn’t make it a spotlight when she issued an order saying she would appoint a special master to filter the documents for any privileged material.

Steven Aftergood, a government secrecy specialist with the Federation of American Scientists, called the Trump team’s discussion of the act “lots of smoke,” adding, “One runs the chance of taking these arguments more seriously than they deserve, and from my viewpoint they’re muddled, confused and tend to attract unwarranted conclusions.”

But in response to questions for this text, Mr. Kise declined to transcend the legal arguments presented within the lawyers’ court filings.

Here’s a dissection.

It’s a law Congress enacted in 1978 after the Watergate scandal, when control of former President Richard M. Nixon’s White House files had been a subject of dispute.

The law says that the federal government “shall reserve and retain complete ownership, possession, and control of presidential records.” It also set rules for the National Archives for tips on how to handle such records when a president leaves office.

It defines presidential records as materials the president or his staff create or receive in the midst of their official duties. It excludes personal documents, like diaries and political campaign files, and files produced by agencies, that are as an alternative governed by the Federal Records Act.

Mr. Trump’s lawyers have insisted that it’s the only law that governs the dispute over the documents marked as classified. “The final word disposition of all of the ‘classified records,’ and sure many of the seized materials,” they contend, “is indisputably governed exclusively by the provisions of the Presidential Records Act.”

Their premise appears to be that any government document handed to the president becomes a presidential record.

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

They’ve also intimated that since 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.

They usually 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 makes a speciality of information law.

To begin, presidents also routinely handle documents produced by departments and agencies just like the Pentagon and the C.I.A. As agency records, they’re as an alternative 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 don’t 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 is also considered a presidential record.

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

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

Pointing to this and other apparent flaws, Ms. Kwoka suggested that Mr. Trump’s lawyers could also be raising their claims concerning the act “to create a bunch of confusion around something that doesn’t should be that confusing” so as “to win over a portion of public opinion or delay the legal proceedings.”

Based on their premise that the Presidential Records Act is the one relevant law, they have asserted that “the entire records at issue in the federal government’s motion” — meaning those marked as classified — can only be presidential records or “personal records, the determination of which was in President Trump’s discretion.”

They usually have cited a 2012 ruling, by Judge Amy Berman Jackson of the Federal District Court for the District of Columbia, in arguing that the Presidential Records Act gives “extraordinary discretion” to departing presidents to determine whether materials needs to be designated as presidential records for the National Archives or personal records to maintain.

Notably, Mr. Trump’s legal team has not argued that he actually deemed any of the disputed documents as his personal property. As a substitute, the lawyers have coyly insinuated that he might need done so — in an apparent effort to influence the federal government to back off.

“To the extent President Trump could have categorized certain of the seized materials as personal during his presidency, any disagreement as to that categorization is to be resolved under the P.R.A. and can’t possibly form the premise for any criminal prosecution,” they wrote.

First, there could also be a timing problem.

In some instances, the Trump legal team hints that Mr. Trump might need designated the records as personal before leaving office. But in a single place of their filing on Monday, the lawyers implied that despite being out of office, he should wield that purported power: “Critically, the previous president has sole discretion to categorise a record as personal or presidential.”

But the identical 2012 ruling they cited makes clear that any such decision must be “made during, and never after, the presidency.”

A broader problem would arise if any of the documents at issue are agency records, which are usually not subject to the Presidential Records Act even in the event that 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.

It is rather prone to be far less expansive than Mr. Trump’s lawyers imply.

Pointing to a provision of the Presidential Records Act that claims “the presidential records of a former president shall be available to such former president or the previous president’s designated representative,” they’ve claimed that this implies he “has an unfettered right of access.”

Thus, they wrote, whether it was improper for Mr. Trump to be holding onto presidential records at Mar-a-Lago was a “civil matter governed by the P.R.A.” and was not a legitimate basis for a criminal investigation.

That argument takes the access provision out of context. The supply exempts former presidents from general limits the National Archives imposes on public access to presidential records which can be already in its custody. It doesn’t say former presidents can indefinitely retain custody of presidential records. And it doesn’t apply to agency records.

Mr. Trump’s legal team has also cited this provision in pushing back against the Justice Department’s proposal to exclude documents marked as classified from the special master’s review. The lawyers made the novel suggestion that Mr. Trump could designate the independent arbiter as his representative to present that person unlimited access to the files.

It raises several issues.

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

“The federal government reads into the Presidential Records Act an enforcement provision that doesn’t exist; the law exhorts a former president to interface with the archivist to make sure the preservation of presidential records, but it surely doesn’t oblige the previous president to take any particular steps with respect to those records,” they wrote in an Aug. 31 filing, for instance.

However the act does have an enforcement mechanism, in line with Judge Jackson’s 2012 ruling. A provision of it, she noted, bestows the archivist “with authority to invoke the identical enforcement mechanism present in one other statute, the Federal Records Act.” That law says that the archivist can ask the Justice Department to initiate an motion to get well missing records — precisely the sequence of events that took place.

The Federal Records Act doesn’t specify whether such an motion needs to be a lawsuit or a criminal investigation. But it surely goes on to say that the department might also seek “other redress provided by law.”

There are criminal laws empowering the federal government to retrieve records from individuals who don’t have any 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 america or aid a foreign nation.

“Whether or not it’s a presidential record doesn’t answer the query of whether he could be required to show it over to the Justice Department if it’s demanded, since it still pertains to the national defense,” said Peter M. Shane, a legal scholar in residence at Latest York University and a specialist in separation-of-powers law.

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