In legal fight over documents, ‘a lot of smoke’ from the former president
By Charlie Savage and Alan Feuer
Lawyers for former President Donald Trump have repeatedly invoked the Presidential Records Act in expressing grievances about the FBI’s search of his Florida residence and club last month to retrieve government documents, including some marked as highly classified.
Despite being highlighted in their legal arguments, however, the law has not played a major role in the litigation to date. The Justice Department has largely brushed off the topic, and Judge Aileen M. Cannon did not make it a focus 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 “a lot of smoke,” adding, “One runs the risk of taking these arguments more seriously than they deserve, and from my point of view they are muddled, confused and have a tendency to draw unwarranted conclusions.”
Christopher M. Kise, a lawyer for Trump who signed a brief on Monday that repeatedly raised the Presidential Records Act, said in an interview that it was “premature for us to have the debate over the substantive merits” of particular documents until the special master had reviewed them.
But in response to questions for this article, Kise declined to go beyond the legal arguments presented in the lawyers’ court filings.
Here is a dissection.
What is the Presidential Records Act?
It is a law Congress enacted in 1978 after the Watergate scandal, when control of former President Richard Nixon’s White House files had been a subject of dispute.
The law says that the government “shall reserve and retain complete ownership, possession, and control of presidential records.” It also set rules for the National Archives for 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 course of their official duties. It excludes personal documents, like diaries and political campaign files, and files produced by agencies, which are instead governed by the Federal Records Act.
What has the Trump legal team said about the act?
Trump’s lawyers have insisted that it is the only law that governs the dispute over the documents marked as classified. “The ultimate disposition of all the ‘classified records,’ and likely most 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.
Among their assertions, Trump’s lawyers have claimed that he could have deemed the most disputed documents — more than 100 records marked as classified — as his own personal property, the National Archives could not second-guess him, and even courts would have “very limited judicial oversight over such categorization.”
They have also intimated that because 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 Trump keeping them, including classified ones, at Mar-a-Lago.
And they 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 Trump’s handling of sensitive government documents.
Is the Presidential Records Act the only relevant law?
No, said Margaret Kwoka, an Ohio State University professor who specializes in information law.
To start, presidents also routinely handle documents produced by departments and agencies like the Pentagon and the CIA. As agency records, they are instead 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 do not 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 could also be considered a presidential record.
“Certainly anything produced by an agency and given to a president would be considered an agency record,” Kwoka said.
Aftergood agreed that agency records keep that status even when brought into the White House.
Pointing to this and other apparent flaws, Kwoka suggested that Trump’s lawyers may be raising their claims about the act “to create a bunch of confusion around something that doesn’t have to be that confusing” in order “to win over a portion of public opinion or delay the legal proceedings.”
Why do Trump’s lawyers say he might own the files marked as classified?
Based on their premise that the Presidential Records Act is the only relevant law, they have asserted that “all of the records at issue in the 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.”
And they have cited a 2012 ruling, by Judge Amy Berman Jackson of the U.S. District Court for the District of Columbia, in arguing that the Presidential Records Act gives “extraordinary discretion” to departing presidents to decide whether materials should be designated as presidential records for the National Archives or personal records to keep.
Notably, Trump’s legal team has not argued that he actually deemed any of the disputed documents as his personal property. Instead, the lawyers have coyly insinuated that he might have done so — in an apparent effort to persuade the government to back off.
“To the extent President Trump may 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 cannot possibly form the basis for any criminal prosecution,” they wrote.
What are some of the problems with this idea?
First, there may be a timing problem.
In some instances, the Trump legal team hints that Trump might have designated the records as personal before leaving office. But in one place in their filing on Monday, the lawyers implied that despite being out of office, he may still wield that purported power: “Critically, the former president has sole discretion to classify a record as personal or presidential.”
But the same 2012 ruling they cited makes clear that any such decision has to be “made during, and not after, the presidency.”
A broader problem would arise if any of the documents at issue are agency records, which are not subject to the Presidential Records Act even if 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,” Rozell said.
What about Trump’s legal team’s claim that there is no enforcement mechanism?
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 head of the National Archives, known as the archivist, and a former president. Sometimes the lawyers declared that without qualification; other times they have said it has no “criminal” enforcement mechanism.
“The government reads into the Presidential Records Act an enforcement provision that does not exist; the law exhorts a former president to interface with the archivist to ensure the preservation of presidential records, but it does not oblige the former president to take any particular steps with respect to those records,” they wrote in an Aug. 31 filing, for example.
But the act does have an enforcement mechanism, according to Jackson’s 2012 ruling. A provision of it, she noted, bestows the archivist “with authority to invoke the same enforcement mechanism found in another statute, the Federal Records Act.” That law says that the archivist can ask the Justice Department to initiate an action to recover missing records — exactly the sequence of events that took place.
The Federal Records Act does not specify whether such an action should be a lawsuit or a criminal investigation. But it goes on to say that the department may also seek “other redress provided by law.”
There are criminal laws empowering the government to retrieve records from people who have no 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 the United States or aid a foreign nation.
“Whether or not it is a presidential record doesn’t answer the question of whether he would be required to turn it over to the Justice Department if it’s demanded, because it still relates to the national defense,” said Peter M. Shane, a legal scholar in residence at New York University and a specialist in separation-of-powers law.