Robbins: Trump and the Presidential Records Act
Not surprisingly, I suppose, Donald Trump has raised much recent Strum und Drang about the Presidential Records Act. Notwithstanding that the act has not a whit to do with the charges leveled against the ex-president in the Mar-a-Lago classified documents case presided over by Trump-appointee Aileen Cannon, Trump and his legal minions have sought to have the case thrown out on grounds as shaky as that which stirred recently beneath Taiwan.
Although the judge rejected Trump’s plea to dismiss the case outright, in her two-page order, Cannon, with her legal head apparently on backward, said the Trump team had raised “various arguments warranting serious consideration.”
What the Trump team argued was that the act — adopted in the aftermath of the Nixon Watergate scandal — entitled Trump to designate as his personal property the records he took with him to his Mar-a-Largo estate and, as they were personal to him, he could do with them as he pleased. Trump’s lawyer, Todd Blanche, expostulated that, “He had original classification authority. He had the authority to do whatever he thought was appropriate with his records.”
The problem is, besides the Presidential Records Act having no bearing whatsoever on the case, it is the Espionage Act that underpins the bulk of the felony counts against Trump.
Some of you may recall that in September 2022, in a chummy interview with Fox’s Sean Hannity, Trump went so far as to declaim that presidents — and, presumably him especially, “… can declassify documents on a whim, even just by thinking about it.”
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Hannity: “Is there a process? What was your process to declassify?”
Trump: “There doesn’t have to be a process, as I understand it. You know, different people say different things, but as I understand it there doesn’t have to be.”
Trump again, leaning in: “If you’re the president of the United States you can declassify just by saying ‘It’s declassified.’ Even by thinking about it. There doesn’t have to be a process. There can be a process, but there doesn’t have to be. You’re the president, you make that decision … I declassified everything.”
Thus sayeth, Trump, but, um … no.
Not only is that most definitely not how it works it isn’t, by the farthest stretch, what the Presidential Records Act provides. So what, then does it say and, rather than feats of presidential mental prestidigitation, what does it stand for?
Enacted in 1978 after President Nixon sought to destroy records relating to his presidential tenure upon his resignation in 1974, the act may be found at Chapter 44, United States Code Section 22. The law supplanted the prior policy that a president’s records were considered private property, making unequivocal, henceforth, that presidential records are owned, not by the president, but by the public.
The act requires that the president ensure the preservation of records documenting the performance of his official duties, provides for the National Archives and Records Administration to take custody and control of the records, and sets forth a schedule of staged public access to such records.
Specifically, the act:
- Defines and states public ownership of the records.
- Places the responsibility for the custody and management of presidential records with the president.
- Allows the incumbent president to dispose of records that no longer have administrative, historical, informational, or evidentiary value, only after he has consulted in writing, with the archivist of the United States.
- Establishes a process for restriction and public access to the records.
- Requires that vice-presidential records are to be treated in the same way as presidential records.
- Establishes that presidential records automatically transfer into the legal custody of the archivist as soon as the president leaves office.
- Establishes procedures for Congress, courts, and subsequent administrations to obtain “special access” to records from the National Archives and Records Administration that remain closed to the public.
- Establishes preservation requirements for official business conducted using non-official electronic messaging accounts.
- Requires that the president and his staff take all practical steps to file personal records separately from presidential records.
- Prevents an individual who has been convicted of a crime related to the review, retention, removal, or destruction of records from being given access to any original records.
How then, do Trump and Co. claim it as a shield?
Other than a friendly judge, constitutionalists, legal scholars, and former National Archives and Records Administration administrators are left scratching their heads.
Jason Baron, former director of litigation at the National Archives and Records Administration, has been quoted as saying, “The former President is simply wrong as a matter of law. As of noon on Jan. 20, 2021, when President Biden took office, all presidential records of the Trump Administration came into the legal custody of the archivist of the United States. Full stop … there was no further talking or negotiating to be had.”
Presidential historian and former director of the Richard Nixon Presidential Library, Timothy Naftali, described Trump’s claim simply, as “nonsense.” The former president’s description of the Presidential Records Act is “a matter of fantasy.”
What the act says and what the Trump team claims have no relation.
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Federal prosecutor David Harback summed it up succinctly. “The documents charged in the indictment are not personal records, period. They are not. They are nowhere close to it under the definition of the Presidential Records Act.”
Is the door left open by the judge simply a bone thrown to the Trump team, or is it one into which she will, however wrongly, try to sink her teeth?
Time and Lady Justice will ultimately tell.
Rohn K. Robbins is an attorney licensed before the Bars of Colorado and California who practices Of Counsel in the Vail Valley with the Law Firm of Caplan & Earnest, LLC. His practice areas include business and commercial transactions; real estate and development; family law, custody, and divorce; and civil litigation. Robbins may be reached at 970-926-4461 or at his email address: Rrobbins@CELaw.com. His novels, “How to Raise a Shark (an apocryphal tale),” “The Stone Minder’s Daughter,” and “Why I Walk so Slow” are currently available at fine booksellers. And coming soon, “He Said They Came From Mars.”
