Why Trump Had a Right to Keep the Documents; Trump’s Boxes and Clinton’s Sock Drawer

Why Trump Had a Right to Keep the Documents:

Michael Bekesha of Judicial Watch reinforces his argument about the ‘Clinton sock drawer’ case.

The implications of the “Clinton Sock Drawer” case, laid out in my op-ed “Clinton’s Sock Drawer and Trump’s Boxes” (June 14), shouldn’t be derided. The Constitution and the Presidential Records Act aren’t as simple as former Attorney General Bill Barr and letter writer James Wendel (June 20) think.

Not every record created by a federal agency is an “agency record.” As then-Judge Merrick Garland and two of his colleagues on the D.C. Circuit concluded in 2013 (in another Judicial Watch case, concerning White House visitor logs maintained by the Secret Service), records created by an agency for the president and intended to be controlled by the president aren’t agency records. Why not? Separation of powers. As Judge Garland explained, if records requested and intended to be controlled by the president were agency records, “a potentially serious congressional intrusion into the conduct of the President’s daily operations” would exist.

The recent indictment implies that Donald Trump received the 31 records when he was president and that he intended to control them because he placed them in boxes, retaining them. At this point, only the government knows whether those records were created for President Trump. But that fact probably doesn’t matter. Another D.C. Circuit panel in 1993 explained that the purpose of the “agency record” exception in the Presidential Records Act was to prevent a president from defining “presidential records” as “all records produced or received by, or in the possession or under the control of, any government agency or employee of the United States.” —>READ MORE HERE

Trump’s Boxes and Clinton’s Sock Drawer:

Trump’s Boxes and Clinton’s Sock Drawer

Although the indictment against Donald Trump doesn’t cite the Presidential Records Act, the charges are predicated on the law. The indictment came about only because the government thought Mr. Trump took records that didn’t belong to him, and the government raided his house to find any such records.

This should never have happened. The Presidential Records Act allows the president to decide what records to return and what records to keep at the end of his presidency. And the National Archives and Records Administration can’t do anything about it. I know because I’m the lawyer who lost the “Clinton sock drawer” case.

In 2009, historian Taylor Branch published “The Clinton Tapes: Wrestling History With the President.” The book is based on recordings of Mr. Branch’s 79 meetings with Bill Clinton between Jan. 20, 1993, and Jan. 20, 2001. According to Mr. Branch, the audiotapes preserved not only Mr. Clinton’s thoughts on issues he faced while president, but also some actual events, such as phone conversations. Among them:

• Mr. Clinton calling several U.S. senators and trying to persuade them to vote against an amendment by Sen. John McCain requiring the immediate withdrawal of troops from Somalia

• Mr. Clinton’s side of a phone call with Rep. William Natcher (D., Ky.) in which the president explained that his reasoning for joining the North American Free Trade Agreement was based on technical forecasts in his presidential briefings.

• Mr. Clinton’s side of a phone conversation with Secretary of State Warren Christopher about a diplomatic impasse over Bosnia.

• Mr. Clinton seeking advice from Mr. Branch on pending foreign-policy decisions such as military involvement in Haiti and possibly easing the embargo of Cuba.

The White House made the audiotapes. Nancy Hernreich, then director of Oval Office operations, set up the meetings between Messrs. Clinton and Branch and was involved in the logistics of the recordings. Did that make them presidential records?

The National Archives and Records Administration was never given the recordings. As Mr. Branch tells it, Mr. Clinton hid them in his sock drawer to keep them away from the public and took them with him when he left office.

My organization, Judicial Watch, sent a Freedom of Information Act request to NARA for the audiotapes. The agency responded that the tapes were Mr. Clinton’s personal records and therefore not subject to the Presidential Records Act or the Freedom of Information Act.

We sued in federal court and asked the judge to declare the audiotapes to be presidential records and, because they weren’t currently in NARA’s possession, compel the government to get them. —>READ MORE HERE

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