OPINION: This article contains commentary which may reflect the author’s opinion
The FBI dispatched some 30 agents to Donald and Melania Trump’s palatial Palm Beach home early last week. They executed an unprecedented search warrant on the former first lady’s clothes closet and Trump’s office.
According to the FBI, they were searching for intelligence ‘sources and methods’ documents.
An FBI report released last Friday states that 11 sets of classified documents were recovered from Mar-a-Lago.
An inventory of the search showed there were some documents marked ‘top secret’ that typically would be kept in specialized government facilities, according to the Wall Street Journal.
Now the case of a past president keeping documents as Trump did is coming into the spotlight.
“When it comes to the National Archives, history has a funny way of repeating itself. And legal experts say a decade-old case over audio tapes that Bill Clinton once kept in his sock drawer may have significant impact over the FBI search of Melania Trump’s closet and Donald Trump’s personal office.” according to Just the News.
The case in question is titled Judicial Watch v. National Archives and Records Administration and it involved an effort by the conservative watchdog to compel the Archives to forcibly seize hours of audio recordings that Clinton made during his presidency with historian Taylor Branch.
For pop culture, the case is most memorable for the revelation that the 42nd president for a time stored the audio tapes in his sock drawer at the White House. The tapes became the focal point of a 2009 book that Branch wrote.
U.S. District Judge Amy Berman Jackson in Washington D.C. ultimately rejected Judicial Watch’s suit by concluding there was no provision in the Presidential Records Act to force the National Archives to seize records from a former president.
However, Jackson’s ruling also made some other comprehensive assertions that pertain more directly to the FBI’s decision to seize Trump’s handwritten notes and files at Mar-a-Lago. One of the most relevant aspects is that a president has a wide range of discretion over what records are considered personal and official, and he has the power to declassify and destroy records at will.
“Under the statutory scheme established by the PRA, the decision to segregate personal materials from Presidential records is made by the President, during the President’s term and in his sole discretion,” noted Jackson’s decision of March 2012, a decision that was never appealed.
“Since the President is completely entrusted with the management and even the disposal of Presidential records during his time in office, it would be difficult for this Court to conclude that Congress intended that he would have less authority to do what he pleases with what he considers to be his personal records,” she explained.
The ruling is here.
“The judge noted a president could destroy any record he wanted during his tenure and his only responsibility was to inform the Archives,” JtN added.
As to whether records a president concluded were personal can be forcibly seized after he leaves office, the court concluded it was unreasonable to force NARA to go get the tapes.
“Because the audiotapes are not physically in the government’s possession, defendant submits that it would be required to seize them directly from President Clinton in order to assume custody and control over them,” Jackson argued. “Defendant considers this to be an ‘extraordinary request’ that is unfounded, contrary to the PRA’s express terms, and contrary to traditional principles of administrative law. The Court agrees.”
In that case, the defendant was the same Justice Department that authorized Trump’s estate raid. The arguments they made a decade ago can be found here.
In addition, Jackson concluded that courts are not allowed to review a challenge to a presidential decision made by the National Archives. An enforcement mechanism can be initiated by the Archives and the attorney general if it wants to challenge a decision, but the process is civil in nature and does not carry any criminal penalties, she stated.
“The search warrant the FBI enforced sought two types of records: classified materials and records created during the Trump presidency. Trump has been adamant the records he took to Mar-a-Lago were both declassified and deemed personal by him,” JtN continued.
Some government lawyers reached out privately to Just the News in recent days questioning the use of the FBI to collect presidential records, citing Jackson’s ruling and suggesting it was a civil and not criminal matter where deference to Trump is required by law.
In regards to classification, both Presidents George W. Bush and Barack Obama signed executive orders — which remain in effect today — stating that presidents can declassify secrets with broad authority and are exempt from following the mandatory declassification procedures that all other government officials are required to do.
According to some experts, the FBI raid was too heavy-handed under current laws as a result of the Jackson ruling and the declassification powers.
According to Brock, the FBI’s search warrant went beyond what the FBI’s agent manual recommended and was overly broad. “Specificity is important in order to protect fourth amendment rights from exuberant government overreach designed to find whatever they can,” he said.
Moreover, Brock said he believed the DOJ and FBI were not authorized to criminalize the keeping of presidential records.
The FBI warrant “apparently makes a novel legal assertion that any presidential record kept by a former president is against the law,” Brock stated. “You have to wonder what the other living former presidents think about that. They have the right and, apparently, clear desire to remain silent.”
“Tom Fitton, the president of Judicial Watch who was on the losing end of the Clinton sock drawer case, said he believes Jackson’s ruling could have a profound impact on the coming legal battles over the Trump search,” JtN reported.
“The government, the lawyer for the Archives, said, ‘You know what? If documents are in the former President’s hands, where they’re presumptively personal, we just, you know, we presume they’re personal,’” Fitton said.
“The Justice Department previously had told us in response to a question about Bill Clinton: ‘Tough luck, it’s his.’ But they changed their mind for Donald Trump?” he asked. “… The law and court decision suggests that Trump is right. And frankly, based on this analysis, Trump should get every single document they took from him back. It’s all personal records.”
Source: The Republic Brief