WASHINGTON — Attorneys for former President Donald J. Trump have repeatedly invoked the Presidential Records Act in citing grievances over the FBI’s search of his Florida residence and club last month to retrieve government documents, including some marked as highly classified.
Despite being put forward in their legal arguments, the law has not played a major role in the lawsuits so far. The Justice Department has largely brushed off the subject, and Judge Aileen M. Cannon made no focus when she issued an order that she would appoint a special master to filter the documents for any privileged material.
Steven Aftergooda government secret specialist at the Federation of American Scientists, called the Trump team’s discussion of the act “a lot of smoke,” adding, “You risk taking these arguments more seriously than they deserve, and from my point of view they are confused, confused and tend to draw unwarranted conclusions.”
But in response to questions for this article, Mr. Kise to go beyond the legal arguments presented in the attorney files.
Here’s a dissection.
What is the Presidential Records Act?
It’s a bill passed by Congress in 1978 after the Watergate scandal, when control of former President Richard M. Nixon’s files was the subject of contention in the White House.
The law says: that the government will “reserve and retain full ownership, possession and control of presidential records.” It also established rules for the National Archives for handling such records when a president leaves office.
It defines presidential documents as materials that the president or his associates create or receive in the course of their official duties. It excludes personal documents, such as diaries and political campaign files, and files produced by agencies, which are instead governed by the Federal Records Act.
What did Trump’s legal team say about the act?
Mr Trump’s Lawyers have insisted that it is the only law that settles the dispute over the documents marked as classified. “The ultimate destination of all ‘classified documents’ and probably most seized materials,” they argue, “is unquestionably determined solely by the provisions of the Presidential Records Act.”
Their premise seems to be that every government document handed over to the president becomes a presidential record.
More on the Trump Document Inquiry
Among their allegations, Mr. Trump’s lawyers have argued that he could have regarded the most disputed documents — more than 100 records marked classified — as his own personal property, and neither the National Archives nor a court could question him.
They have also hinted that because the Presidential Records Act gives former presidents and their representatives the right to access presidential records from their term of office, there was no problem with Mr. Trump having them, including classified documents, on Mar-a- loved. Lago.
And they have argued that the Presidential Records Act has no criminal enforcement mechanism, so it was inappropriate for the Justice Department to open a criminal investigation into Mr Trump’s handling of sensitive government documents.
Is the Presidential Records Act the only relevant law?
No, said Margaret Kwoka, a professor at Ohio State University who specializes in information law.
For starters, presidents also routinely handle documents produced by departments and agencies such as the Pentagon and the CIA. Instead, they fall under the Federal Records Act, which contains no provision allowing a president to declare anything as his personal property.
The Presidential Records Act states that presidential records don’t add “official data from an agency.” A 1993 ruling by the Court of Appeals for the District of Columbia Circuit says the law avoids any “potential overlap in definitions” by making it clear that if a document qualifies as an agency record, it trumps the possibility that it could also qualify as a presidential record are considered.
“Certainly anything produced by an agency and given to a president is considered an agency record,” Ms Kwoka said.
mr. Aftergood agreed that the agency’s administration retains that status even when taken to the White House
Referring to these and other apparent flaws, Ms. Kwoka suggested that Mr. Trump’s lawyers might make their claims “to create a lot of confusion around something that doesn’t have to be so confusing” to “get some of the public opinion.” or delay in legal proceedings.”
Why are Mr. Trump’s lawyers saying he may own the files marked as classified?
Based on their premise that the Presidential Records Act is the only relevant law, they have: have claimed that “all records at issue in the motion of the administration” — that is, those marked as classified — can only be presidential records or “personal records, the determination of which was at the discretion of President Trump.”
And they quoted a statement from 2012by Judge Amy Berman Jackson of the Federal District Court for the District of Columbia, arguing that the Presidential Records Act gives “extraordinary discretion” to outgoing presidents to decide whether to designate material as presidential records for the National Archives of personal records to keep.
Notably, Mr Trump’s legal team has not argued that he actually considered the disputed documents his personal property. Instead, the lawyers have surreptitiously suggested that he may have done so — in an apparent effort to convince the government to pull out.
“To the extent that President Trump has designated certain of the seized materials as personal during his presidency, any disagreement over that classification must be resolved under the PRA and cannot possibly form the basis of any criminal charges,” they wrote.
What are some of the problems with this idea?
First, there may be a timing issue.
In some cases, Trump’s legal team is hinting that Mr. Trump may have marked the data as personal before leaving office. But in one place in their submit on Mondaythe lawyers suggested that despite his absence, he can still exercise that purported power: “It is critical that the former president classifies a record as personal or presidential in his sole discretion.”
But the same 2012 statement they cited makes it clear that such a decision “must be made during and not after the presidency.”
A broader problem would arise if any of the documents in question are agency records not covered by the Presidential Records Act, even if shown to the president, agrees Mark J. Rozell, an information law specialist at George Mason University and the dean of the Schar School of Policy and Government.
“He cannot just knowingly declare that the records of the agency are his personal property,” said Mr Rozell.
How far does a former president’s right of access extend?
It is very likely that it will be much less extensive than Trump’s lawyers suggest.
Point at a provision of the Presidential Records Act that says “a former president’s presidential records will be available to that former president or the former president’s designated representative,” they have argued that this means he “has an unimpeded right of access.”
So, they wrotewhether it was inappropriate for Mr. Trump to maintain presidential records in Mar-a-Lago was a “civil matter governed by the PRA” and was not a legitimate basis for a criminal investigation.
That argument takes the access provision out of context. The provision exempts former presidents from: general limits set by the National Archives for public access to presidential documents already in his possession. It does not say that former presidents can retain indefinite custody of presidential data. And it does not apply to the administration of the agencies.
Mr. Trump’s legal team also cited this provision to oppose the Department of Justice’s proposal to exclude documents marked as classified from the special master review. the lawyers made the new suggestion that Mr. Trump could designate the independent arbitrator as his representative to give that person unrestricted access to the files.
What about their claim that there is no enforcement mechanism?
It raises several problems.
Trump’s legal team has feuded in several deposits 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 stated that without reservation; 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 urges a former president to contact the archivist to ensure the preservation of presidential records, but it does not require the former president to take specific steps regarding those records,” they wrote in an application from August 31, for example .
But the law does have an enforcement mechanism, according to Judge Jackson’s 2012 verdict. A provision thereof, she noted, gives the archivist “the authority to invoke the same enforcement mechanism as under another statute, the Federal Records Act.” that law says the archivist can ask the Department of Justice to initiate an action to restore missing records – exactly the sequence of events that occurred.
The Federal Records Act does not specify whether such action must be a lawsuit or a criminal investigation. But it goes on to say that the department may also seek “other remedies provided by law”.
There are criminal laws that empower the government to collect data from people who have no legal right to hold it. The search warrant cited several, including the Espionage Actcriminalizing the unauthorized retention of national defense documents that could harm the United States or help another country.
“Whether it’s a presidential file or not doesn’t answer the question of whether he should turn it over to the Department of Justice if demanded, because it still pertains to national defense,” said Peter M. Shane, a lawyer in residence at New York University and a specialist in the separation of powers.