Megyn Kelly was right to challenge the former president on this, because his argument doesn’t hold up to scrutiny.
Megyn Kelly was right to challenge the former president on this, because his argument doesn’t hold up to scrutiny.
Author’s Note: This is Part Two of a two-column series. Part One can be found here.
I n Part One of this series, I described former president Donald Trump’s claimed defense under the Presidential Records Act (PRA) — the defense against the charges in his Mar-a-Lago case that he trumpeted but declined to explain in a recent interview with Megyn Kelly. In this column, I address the fatal flaws in Trump’s PRA theory.
The first and most blatant flaw is that, if you are citing a statutory scheme as your defense, then you have to comply with its terms. Courts do not allow claimants to demand a reading of a statute that is exacting to the point of being factitious on the parts the claimant thinks are helpful, but simultaneous erase other parts of the statute that the claimant has not only flouted but made a mockery of.
Let’s remember that the purpose of the PRA is preservation of records that the statute says, emphatically, are government property, not the personal property of the president (see §2202). If we were dealing with a president who took seriously his constitutional duty to execute the laws faithfully, it would not matter whether classified intelligence reports were technically deemed presidential records rather than agency records. Both categories are government property to be maintained in government safekeeping. As the D.C. Circuit Court of Appeals explained in Armstrong v. Executive Office of the President (1993), the PRA aims to cover presidential records that were not covered as agency records by FOIA, for the purpose of preserving them as government property; and significantly, the “PRA does not bestow on the President the power to assert sweeping authority over whatever materials he chooses to designate as presidential records without any possibility of judicial review. ”
The PRA is very clear (in §2201(2)) that documents created or received by a president or his subordinates are presidential records, which must be preserved as government records if “they relate to or have an effect upon the carrying out of the constitutional, statutory, or other official or ceremonial duties of the President.” There is no doubt that intelligence-agency records received by the president for the purpose of executing his duties to protect national security and conduct foreign relations “relate to or have an effect upon the carrying out of the constitutional, statutory, or other official or ceremonial duties of the President.” Hence, even if Trump’s reading of the PRA is correct — meaning, even if classified intelligence-agency records are technically not agency records under PRA’s FOIA-borrowed definition of that term (and it is by no means certain that Trump is correct about that) — then such intelligence-agency records are undoubtedly presidential records, which the PRA designates as government property and requires to be archived in safekeeping under government supervision.
Trump incoherently claims, first, that the PRA must be meticulously followed so that agency reports are categorized as presidential records, rather than agency records, but, second, that once this is done the PRA must be utterly ignored so that he can move agency records at will from the category of presidential records to that of personal records.
Put aside for a moment that it could not be clearer that reports written by publicly funded intelligence agencies are not the president’s personal records. It bears observing first that statutes are never construed the way Trump suggests. If he can insist on exacting compliance, it must be exacting compliance across the board, not just with the parts of the statute he thinks serve his interests.
Under the PRA (§2201(3)), documents can only be a president’s personal records if they are “of a purely private or nonpublic character” — in the nature of “diaries, journals, or other personal notes” which are “not prepared or utilized for, or circulated or communicated in the course of, transacting Government business.” To maintain that intelligence-agency reports meet the PRA’s definition of personal records is either to be delusional or mendacious.
Moreover, the PRA does not content itself with a vain hope that a president will categorize records in good faith. While Trump emphasizes that the PRA covers documents the president receives, he conveniently elides the requirement (in §2203(b)) that those records must, “to the extent practicable, be categorized as Presidential records or personal records upon their . . . receipt and be filed separately.”
There is no evidence that Trump did this. And mind you, it is required not just to be done but to be done in writing. Under §2203(a), the president must ensure that “activities, deliberations, decisions, and policies” that reflect the performance of his duties are “adequately documented”; and that documentation process creates “records” that must be “preserved and maintained as Presidential records[.]” Not surprisingly, neither Trump nor his staff have produced any records indicating that he designated the agency intelligence reports in his possession as personal records. It’s easy to understand why: Had he done so, it would have been scandalous. The archivist, Congress, and the intelligence agencies themselves would have raised holy hell.
What’s more, the PRA also anticipates that the archivist and/or Congress may disagree with a president about which presidential records the latter is at liberty to dispose of without preserving. Under §2203(c) the president is required to obtain the archivist’s views in writing. If the archivist agrees, the records can be discarded as the president sees fit; if not, the archivist may consult with Congress, which may then take action to ensure the preservation of the documents.
Needless to say, Trump did not adhere to any of these PRA provisions. Instead, the former president continues to bluster that his unilateral determination that intelligence reports were his personal property — though belated, unsupported by any paper trail, and easily belied by the PRA’s terms — is supported by Judicial Watch v. National Archives and Records Administration (NARA), the so-called Clinton sock-drawer case.
From the way Trump talks about it, one would think this ruling came down from Mount Sinai on stone tablets. In reality, it is merely a 2012 decision of Washington, D.C., federal district judge Amy Berman Jackson. As I’ve previously recounted, the case did not involve agency intelligence reports; rather, at issue were tape recordings President Bill Clinton had made with historian Taylor Branch in anticipation of compiling a history of his administration.
Among the many problems for Trump in using the case is that it resulted from the Obama Justice Department’s 2009 decision not to pursue the tapes that Clinton took when he left the White House nine years earlier. Judge Jackson correctly concluded that NARA had no authority under the PRA to retrieve the documents. She didn’t say no government component had such authority; the Justice Department can always take enforcement action if criminal laws may have been violated, but here it opted not to, a court has no power to compel a criminal investigation, and NARA — the agency Judicial Watch sued — had no power to conduct a criminal investigation or seize the tape recordings. To the extent Jackson reasoned that it was up to Clinton to determine what constituted personal records, this was wrong but unnecessary to the ruling. The PRA sets the standard to be applied, and as the D.C. Circuit observed in the above-discussed Armstrong case, the president does not have immunity from judicial review in making determinations under the PRA.
Furthermore, the PRA was amended in 2014 — i.e., after the Clinton sock-drawer case — to clarify that NARA must collect presidential records based on their content (do they bear on official acts of the president?) rather than the medium they involved (paper, tape-recording, digital, etc.). This amendment would not have changed the result of the Clinton sock-drawer case because it would still be up to the Justice Department, not NARA, to take any enforcement action; but if the amendment had been on the books at the time, Judge Jackson might have thought better of suggesting that it was entirely up to the president — heedless of the PRA — to decide whether tape recordings of presidential activity constituted presidential records (as they plainly did).
In any event, in the Mar-a-Lago case, at issue are reports generated by taxpayer-funded intelligence agencies, not by the president. These were clearly government property — either agency records or presidential records. In addition, unlike in the Clinton case, the Justice Department did take enforcement action on the Mar-a-Lago documents based on the Espionage Act and the obstruction statute. Thus, the Clinton case is easily distinguishable. But even if it weren’t, it is just a district-court ruling that would not even be binding on another district judge in Washington, D.C., much less on federal district Judge Aileen Cannon in Florida.
Two final points:
First, in the above, I have given the Trump PRA defense more credit than I have in the past, and more credit than I believe it is due. I previously have not taken seriously Trump’s claim that the PRA can be construed to pronounce that agency records are not agency records, so I have here tried to explain how the confusing interplay between the PRA and FOIA could plausibly be construed to draw that unlikely conclusion. That said, I am not convinced the courts will read it that way.
To the contrary, the courts could point out that Trump’s construction of the PRA depends on incorporating the FOIA provision (§552(b)(1)) that excludes classified information from FOIA coverage. That provision, however, is not mentioned in the PRA (as we’ve seen, getting there requires some acrobatics); more importantly, interpreting the PRA that way could undermine its raison d’être, which is to ensure that records are preserved in government safekeeping. No sensible court would permit that. Instead, it would say that whether an intelligence-agency report is deemed an agency record or a presidential record, it is in no event the president’s personal record. It is the government’s property and must be archived in government safekeeping. And a prudent court would also conclude that, in order for Trump’s claim that the agency records at issue are personal records to be entertained seriously, he would have to come forward with evidence that he complied with the PRA’s requirements by (a) designating the agency reports as his personal records at the time he received them, and (b) documenting that designation in writing.
Second, similarly meritless is Trump’s claim (repeated in the Megyn Kelly interview) that the government is manufacturing an obstruction crime — based on his flouting of the grand-jury subpoena — by conducting a criminal investigation under circumstances in which there was no underlying crime. Relatedly, the suggestion floated by Trump that he may not have had to comply with the subpoena is laughable — indeed, if he had really believed that, he would simply have moved to quash the subpoena; instead he pretended to honor it by surrendering some (but not nearly all) of the relevant documents.
Trump did not comply with the PRA, which did not, in any event, authorize him to treat the government’s property — whether deemed agency records or presidential records — as his own personal records. The PRA (§2203(g)) provides that a former president can have access to presidential records; it does not give him possession or control over them. I am no fan of the Biden Justice Department, but it had a good-faith basis to investigate whether, in violation of federal criminal law (§793 of the penal code), Trump possessed national-defense information in an unauthorized place and refused to return it to the government upon lawful demands that he do so — demands that were made for over a year before Trump’s indefensible recalcitrance turned what should have been no-brainer compliance into a criminal investigation. Even if there were nothing in the PRA about subpoenas, the prosecutors would have been well within their rightful authority to issue Trump a grand-jury subpoena. As it happens, though, the PRA itself is clear on this point. Under §2205(2)(A):
Presidential records shall be made available . . . pursuant to subpoena or other judicial process issued by a court of competent jurisdiction for the purposes of any civil or criminal investigation or proceeding[.]
This provision reserves the rights of a president, former president, or any government agency to invoke whatever rights or privileges they may believe they have against subpoena compliance. But Trump never claimed a right not to comply with the subpoena based on the PRA, executive privilege, or anything else. To the contrary, he never moved to quash, he represented to the Justice Department that he was complying with the subpoena, and then he didn’t comply with it.
Megyn Kelly was right to challenge former president Trump regarding his defense against the charges in the Mar-a-Lago documents indictment. It is the most serious criminal jeopardy he faces. He might get mileage, in the friendly confines of south Florida, out of a nullification defense that he is being selectively prosecuted by his political rivals. He will not get mileage out of the PRA.