About that Presidential Records Act defense ...

[Timber Rattler]

https://hotair.com/ed-morrissey/2023/06/12/about-that-presidential-records-act-defense-n557342

Does the Presidential Records Act provide a defense for Donald Trump and his 38-count indictment for mishandling national-security material? Trump himself has repeatedly asserted this for months, as have his campaign and his supporters. The argument declares that the president has plenary authority to determine the difference between “presidential” and “personal” records, and that the National Archives has no authority to contradict those decisions.

To bolster that argument, Trump and his supporters are relying on a decision handed down eleven years ago in a lawsuit brought by Judicial Watch. And it involves Bill Clinton’s sock drawer:

The reference to Clinton’s socks, which has cropped up not just in the former president’s Truth Social feed and at conservative news outlets but even in Trump court filings, stems from a 13-year-old case in which the right-leaning nonprofit Judicial Watch sought access to 79 audio tape recordings of Clinton interviews conducted by the historian Taylor Branch while Clinton was in office.

During his presidency, according to GQ magazine in a 2009 Q&A with Branch, Clinton “squirreled away the cassettes in his sock drawer.” But for Trump’s purposes, what matters is Clinton’s handling of the tapes after he left office: Clinton designated the recordings as personal records, not official presidential records, that were therefore not required to be turned over to the National Archives and Records Administration under the Presidential Records Act.

Judicial Watch sued over that designation, arguing that the tapes captured classified information including Clinton conversations with foreign leaders.

But in a 2012 opinion, the trial judge overseeing Judicial Watch’s lawsuit ruled that even if the tapes should have been designated to be presidential records, she could not order the National Archives to recategorize them.

This case presents a couple of potential problem for Trump’s defense. First off, it’s a circuit court decision, which means it doesn’t set precedent. It also did not involve criminal charges, and the material fell into a gray area (tapes of Clinton and a journalist, with other recorded material reportedly included). It does, however, arguably present an issue for the prosecution if the court takes the opinion in Judicial Watch v NARA as precedential — on the issue of “personal” records, anyway.

Judge Amy Berman Jackson ruled against Judicial Watch mainly on the basis that the National Archives couldn’t and wouldn’t intervene to reclassify the tapes as “presidential records.” The PRA simply doesn’t have that kind of authority:

EXCERPT

[Kamaji]

A published decision of the First Circuit most definitely sets a binding precedent for all federal courts that fall under the First Circuit's jurisdiction, and, depending on the quality of the reasoning in the decision, could act as persuasive authority for courts outside of the First Circuit.