So What In
the Sam Hill Does
The Presidential Records Act of 1978 Actually Say?
There is a fact of history that cannot be denied. Our nation has never witnessed a Former President face trial for retaining possession of any kind of Government document after that Former President has left office. As a cable news junkie, who channel surfs between CNN and MSNBC, I can pretty well explain what are the charges against Mr. Trump, as so can anyone who has been glued to the unfolding drama throughout this past week. Like any Greek Tragedy, to fully understand any event with both a protagandist, in this case, Special Counsel, Jack Smith, and an antagonist, Former President Donald Trump, each side's position must be examined dispassionately.
I will state upfront my one bias concerning these matters and my reporting on them. I do not believe for one New York minute that career professional bureaucrats at the National Archives have entered into any conspiracy to "Get Trump!" Government employees do not operate in such a ham handed manner. It would cost them their very cushy jobs.
It
is difficult to gleam any unbiased information about Mr. Trump's defense
from the news articles already written and broadcasted. So first I asked Bing to
summarize what Mr. Trump
and his media personality defenders are saying
in his defense.
I have heard on various news broadcasts Mr. Trump invoke the Presidential Records Act (PRA) in defense of his actions. He said that the law passed in 1978 gave him, as the Former President, the right to maintain possession of any documents from his administration he so chose to retain possession thereof. Of course, Mr. Trump never cited any section or paragraph of the PRA that gave to him the right of possession of any of the Presidential records from his time in office. There are none.
As voters, come November 2024, we might well be called upon to act as unofficial judge and jury in the matter, if Mr. Trump were to become the Republican candidate for President once again. If Candidate Trump were to be elected President of the United States again, he would be in a position to very likely make the case go away by ordering the Justice Department to cease prosecution. So, this is not a trivial debate limited to the denizens of DC and the chattering class that appears on the cable news programs.
So, to truly become a better informed voter, and to understand whether a
claim on one side has validity, or cannot be supported by the facts, the
discussion of any merits of anyone's case here should be tested within and
against the actual
text of the
Presidential Records Act of 1978 (PRA). Like acts of most
legislatures, the text of PRA is filled with definitions of terms, and
other such boilerplate. For the purposes of the discussion herein,
we will only concentrate on the parts of the law that directly relate
to the current Federal Court case. The complete text of the PRA
can be obtained here in an easy to use clickable
webpage format. Every news organization has links to the text of
the original indictment. I chose the link to Politico's hosting of
it, which can
be had here. I offer a link to the indictment
in the interest of fairness and honesty in reporting. I shall not
refer to the indictment herein. The specifics of the charges made
in the indictment have been well reported in many different news
outlets.
I believe how the PRA defines a "Presidential record" is the first
step in understanding the
general
facts of the matter. A Presidential record is any document, or
part of a document, that is given to a President or created by a
President, including any member of the White House staff, and when the
contents of such document relates in any way to the duties of the President,
that object is
a Presidential Record. This also includes any other documents or
media that might also be related to the duties of the Office. Even
activities that document the political activities of the President may
be considered a Presidential record if the activities documented are in
any way related to official duties of the President. I do not
think there will much dispute about whether or not the documents entered
into evidence as exhibits in the indictment are, in fact, Presidential
records.
The Personal records of the President are defined in Section 3 of the
§
One of Mr. Trump's defenses here centers on whether Former President Bill Clinton kept "Presidential records," in the form of audio recordings made by historian Taylor Branch. Copies of these recordings were then socked away in a sock drawer. Since these recordings were not made by any government agency, the records where in fact for a book that Branch published June 10, 2010. Judge Amy Berman Jackson ruled that the recordings had nothing to do with Mr. Clinton's official duties as President. Complete text of the ruling can be had here. (pdf of ruling.)
The exact wording of Judge Jackson's ruling is quoted below.
The District Court, Amy Berman Jackson, J., court could not compel NARA to assume custody and control over the audio tapes; even if NARA could assume control over the tapes, its only enforcement tools under the PRA were committed to its discretion; and to the extent organization's claim arose under Freedom of Information Act (FOIA), it could not maintain a private right of action to obtain the relief it sought.
So, Mr. Trump's defense falls apart here when contrasted against the facts of the matter. It is unlikely that the recordings in a sock drawer issue could even be allowed in court as a legal defense. There is no case law or precedent upon which a defense could be made based on the tapes in a sock drawer. And a Court has so ruled the recordings are not covered by the PRA. On June 9, 2023, The National Archives published a webpage that briefly recounts how other former Presidents have stayed within the bounds of the PRA.
In recounting testimony before the grand jury that indicted Mr. Trump,
Mr. Trump repeatedly referred to "his documents."
The PRA
is clear about
ownership of any Presidential record of any kind as the PRA defines such
records.
§2202 is unambiguous.
The United States shall reserve and retain complete ownership, possession, and control of Presidential records; and such records shall be administered in accordance with the provisions of this chapter.
§2203 specifies how records will be collected and
maintained while the President is in office. The Section also
defines with equal
specificity how Presidential records are to be collected and maintained
when a President leaves office. The PRA leaves no crack open
here. When a President leaves office, all Presidential records are
to be collected and preserved by the National Archives.
§2203 (g)(2) specifies where Presidential records are to be stored and who shall have access to the records.
The Archivist shall deposit all such Presidential records in a Presidential archival depository or another archival facility operated by the United States. The Archivist is authorized to designate, after consultation with the former President, a director at each depository or facility, who shall be responsible for the care and preservation of such records.
§2203 makes references to Executive Order. No. 13526, S3.5(b). Ex. Ord. No. 13526, S3.5(b) gives the Archivist authority to declassify certain classified documents in the Presidential records and under control of the Archivist.
(b) The Archivist shall conduct a systematic declassification review program for classified records: (1) accessioned into the National Archives; (2) transferred to the Archivist pursuant to 44 U.S.C. 2203; and (3) for which the National Archives serves as the custodian for an agency or organization that has gone out of existence.
§2204 gives both current and former Presidents the right to restrict access to their Presidential records, and outlines procedures to do so.
The remaining sections of the PRA go into great specificity about procedures that explain how the Archivist might respond to Freedom of Information Act requests from journalists and other entities that may demand access. There is a separate section concerning Vice Presidents' records.
Given the clear dictates of the PRA, I do not see how Mr. Trump's lawyers will able to present any legal argument that Mr. Trump was entitled to any documents for which he has been charged to be in possession of. Furthermore, there is no golf club anywhere in these US of A that would qualify as an "archival facility operated by the United States," as §2203 (g)(2) clearly states.
On TV, any talking head can say whatever they want. As I had finished the draft of this and was proof reading the piece, Robert Ray, who represented Donald Trump in the second impeachment trial came on the screen. I turned up the volume so I could hear what Mr. Ray had to say. Actually, I had hoped I had missed something herein. Mr. Ray, however, contended that the Presidential Records Act gave Mr. Trump the right of possession of the documents. He did not, however, cite any Section or Paragraph of the PRA to support his contention. He can't. There is none. Ray's assertion that Mr. Trump mixed personal items in with the Presidential records, and therefore grants Mr. Trump some extra time in sorting out those personal items, is not supported anywhere in the PRA. There is no ambiguity about what becomes of Presidential records when any President leaves office. The Archivist takes possession of all the Presidential records and then sends the records to the National Archive.
In a legal proceeding, only matters of law are allowed to be argued. If and when the case comes to trial, I doubt anyone in the Courtroom will argue that the Presidential Records Act gave Donald Trump the legal authority to retain possession of the records, and then take them to wherever he took them. The PRA states clearly that Presidential records are to be stored at an "archival facility operated by the United States." Neither has the Archivist designated any "director... who shall be responsible for the care and preservation of such records" that were once stored in boxes on Mr. Trump's properties.
I predict that Mr. Trump's legal team will soon drop the Presidential Records Act defense, and begin to argue the inadmissibility of evidence. But that is way beyond my legal acumen. I just know how to read. And so I read the Presidential Records Act. I hope you do so, too. Knowledge is Power.
Postscript: June 18, 2023: I went back and reviewed the entire PRA before making this statement. There is no discussion of penalties for any actions that violate the PRA. More to the point, throughout the document there is an assumption of obedience to its dictums. In my own experience, the PRA is most like a memo sent down from management to quell arguments about how things are to be done in a given situation.
But even the president of the United States
Sometimes must have to stand naked
— It's
Alright, Ma (I'm Only Bleeding), Bob Dylan
Gerald Reiff