Following the Watergate scandal, Congress enacted two laws aimed at preserving presidential records. The Presidential Recordings and Materials Preservation Act of 1974 applied specifically to Richard Nixon, blocking the destruction of his White House tapes. Four years later came the Presidential Records Act (PRA), which applied to future administrations. Under that law, “the United States shall reserve and retain complete ownership, possession, and control of Presidential records,” which belong with the National Archives and Records Administration (NARA).
According to Donald Trump, that principle is essentially meaningless, because a president can arbitrarily classify any records as “personal” rather than “presidential.” In fact, the former president says, no explicit designation is necessary: When he took thousands of documents with him upon leaving the White House in January 2021, that very act transformed them into “personal” records that are not subject to the PRA.
Trump’s lawyers, who are wrangling with the Justice Department over the status and disposition of the records that the FBI seized from Mar-a-Lago in August, make that bold claim in a brief that was unsealed this week. U.S. District Judge Raymond Dearie, the special master charged with reviewing those documents, asked both sides to address several issues, including whether Trump “may designate or convert Presidential records to personal ones during or after his term in office.”
As Trump’s lawyers see it, the answer is obvious. “The Presidential Records Act authorizes a sitting President to designate records as personal records during his term in office,” they say. “A President determines whether a document constitutes a Presidential record or a personal record. In this instance, President Trump exercised that authority.”
How did he do that? “President Trump was still serving his term in office when the documents at issue were packed, transported, and delivered to his residence in Palm Beach, Florida,” the brief says. “Thus, when he made a designation decision, he was President of the United States; his decision to retain certain records as personal is entitled to deference, and the records in question are thus presumptively personal.”
According to Trump’s lawyers, that “designation decision” was implicit in the fact that he took the records. In a “privilege log” prepared for Dearie, they describe many of those records as “items generated during the presidency that can be possessed post-presidency and effectively deemed personal” (emphasis added).
By this reasoning, it is logically impossible that Trump violated the PRA by retaining the records. It is likewise impossible that he violated 18 USC 2071, one of the statutes that the FBI cited in its search warrant affidavit. That law makes it a felony, punishable by up to three years in prison, to “willfully and unlawfully” conceal, remove, or destroy a U.S. government document. If Trump is right that his removal of records made them personal, they presumably are not covered by that statute either.
The PRA defines presidential records as material “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.” Personal records, by contrast, are documents “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.”
Despite those statutory definitions, Trump’s lawyers say, both categories are actually defined by presidential whim. The Justice Department unsurprisingly takes a different view. Trump “may not designate records qualifying as ‘Presidential records’ under the [PRA] as his personal records simply by saying so,” the government’s lawyers say in another brief that was unsealed this week. “Such a reading of the PRA would nullify the statute’s entire purpose by allowing a President to designate all of his official records as ‘personal’ records and then to remove them upon departure from the White House. And it would reduce the PRA’s detailed definitions of ‘Presidential records’ and ‘personal records’ to mere suggestions.”
To back up their interpretation of the PRA, Trump’s lawyers cite Judicial Watch v. NARA, a 2012 case involving a historian’s recorded interviews with former President Bill Clinton. Clinton deemed those recordings personal, and so did NARA. But Judicial Watch, a conservative group that aims to promote transparency in government, argued that the interviews qualified as presidential records.
U.S. District Judge Amy Berman Jackson sided with Clinton and NARA, saying the agency could not be legally compelled to reclassify the recordings. “The only reference in the entire statute to the designation of records as personal versus Presidential also calls for the decision to be made by the executive,” she wrote. “The 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.”
The Justice Department argues that Trump’s lawyers are misreading that decision. Berman “held that a third party cannot bring a claim to compel [NARA] to revisit or overrule a categorization of records that the President made during his term in office,” it says. “Rather, the court held that NARA’s enforcement tools under the PRA are committed to the agency’s sole discretion….Although the court opined that the responsibility to classify records as ‘personal’ or ‘Presidential’ ‘is left solely to the President’ during his term in office, the court nowhere suggested that it would be lawful for a President to flatly defy the PRA by designating what are obviously government records as his ‘personal’ records.”
The brief notes that “NARA itself had also concluded that the records at issue [in Judicial Watch] were personal records.” In Trump’s case, by contrast, NARA repeatedly sought the return of the documents he took, and Trump repeatedly resisted. According to Trump’s lawyers, the proper response would have been “civil litigation initiated by NARA challenging the guidelines or process utilized in a given designation decision,” since “the PRA does not give either the Archivist or any other official free rein to pursue criminal enforcement.”
The statutes cited by the FBI, by contrast, do authorize criminal enforcement. In addition to the laws dealing with improper retention of government records and defense information, they include 18 USC 1519, which makes it a felony, punishable by up to 20 years in prison, to conceal “any record, document, or tangible object” with the intent to “impede, obstruct, or influence” a federal investigation.
The records seized by the FBI included more than 100 documents marked as classified and mementos such as Trump’s pardon for Roger Stone, letters from North Korean dictator Kim Jong-un, and the note that former President Barack Obama left for his successor when Trump took office. Specific information about documents that the Justice Department says Trump improperly deemed “personal” is redacted from the government’s brief. But the government’s lawyers say those items “plainly constitute ‘Presidential records’ under the PRA.”
The Justice Department notes that Trump’s rationale for saying otherwise is the boilerplate claim that certain documents are “items generated during the presidency that can be possessed post-presidency and effectively deemed personal.” By contrast, “where a plausible argument can be made that a record is actually a ‘personal record’ under the PRA, Plaintiff has indicated as much by providing a different basis in the privilege log,” such as “newspapers, media summaries/gifts/clothing: inherently personal items, not related to presidential duties.”
Trump’s PRA argument resembles his claim that every document he took to Mar-a-Lago was automatically declassified, even if it was still marked as secret. His lawyers so far have refrained from making that claim in court, saying only that Trump could have declassified the documents while he was still president. But even if he did that, it is not necessarily relevant under 18 USC 793(e), another statute cited by the FBI.
That law makes it a felony, punishable by up to 10 years in prison, to improperly retain “defense information.” As relevant here, the provision applies to anyone who has “unauthorized possession” of “information relating to the national defense” that he “has reason to believe could be used to the injury of the United States or to the advantage of any foreign nation” and who “willfully retains” that information and “fails to deliver it to the officer or employee of the United States entitled to receive it.” On its face, that law does not hinge on a document’s classification.
In both cases, however, Trump is claiming he could not have committed a crime because the underlying conduct (removing the records) excuses itself. As president, he argues, he had the authority to do whatever he wanted with government records, rendering any criminal charges based on those decisions untenable.
That argument seems like an ex post facto rationalization for Trump’s instinctive sense that any documents he wanted to keep were his personal property. The Washington Post reports that “federal agents and prosecutors have come to believe [Trump’s] motive for allegedly taking and keeping classified documents was largely his ego and a desire to hold on to the materials as trophies or mementos.”
The Post says investigators “reviewed the classified documents” to “see if the types of information contained in them pointed to any kind of pattern or similarities.” They did not find “any apparent business advantage to the types of classified information in Trump’s possession” or evidence of “any nefarious effort by Trump to leverage, sell or use the government secrets.” Rather, Trump “seemed motivated by a more basic desire not to give up what he believed was his property.” According to his lawyers, it was his property, simply because he said so.
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