In my tweet thread yesterday, I argued that “classified materials that Trump [allegedly] took with him were either ‘presidential records’ or ‘agency records.’ They weren’t ‘personal records.’” Further, even if Trump had miscategorized them as ‘personal records” (he didn’t), that wouldn’t have any impact on President Biden’s authority to treat them properly as classified materials.
For what it’s worth, in some of my tweets, I might have been too ready to embrace Andy McCarthy’s argument that the classified materials are “agency records” rather than “presidential records.” Because the Presidential Records Act argument against Trump’s indictment fails either way, this isn’t a matter that I have researched. Andy might well be right, but I’ll stay agnostic on that particular question for now.