WASHINGTON — Lawyers for former President Donald J. Trump have repeatedly invoked the Presidential Records Act to express grievances about the FBI’s search of his Florida home and club last month to retrieve government documents, including some that are marked as top secret.
However, despite their legal arguments, the law has not played a major role in the litigation so far. The Justice Department has largely brushed aside the issue, and Judge Aileen M. Cannon did not make it a focus when she issued an order that she would appoint a special master to screen the documents for privileged material.
Steven Aftergood, a government secrecy specialist at the Federation of American Scientists, called the Trump team’s discussion of the act “a lot of smoke,” adding, “You run the risk of taking these arguments more seriously than they deserve, and by From my point of view you are confused, confused and prone to jump to unwarranted conclusions.”
But in response to questions about that article, Mr. Kise refused to go beyond the legal arguments presented in the attorneys’ court filings.
Here is a section.
What is the Presidential Records Act?
It is a law convention passed in 1978 after the Watergate scandal, when control of former President Richard M. Nixon’s files in the White House was disputed.
The law states that the government “retains and retains complete ownership, possession and control of the records of the President.” It also established rules for the National Archives on how to handle such records when a president leaves office.
It defines presidential records as materials created or received by the President or his staff in the course of their official duties. Excluded are personal documents such as diaries and political campaign records, as well as records prepared by government agencies, which are instead subject to the Federal Records Act.
What did the Trump legal team say about the crime?
Mr Trump’s lawyers have insisted it is the only law governing the dispute over the classified documents. “The final disposition of all ‘classified records,’ and probably most of the confiscated materials,” they claim, “is undeniably governed solely by the provisions of the Presidential Records Act.”
Their premise seems to be that every government document given to the President becomes a Presidential record.
More on the Trump Documents Inquiry
Among their allegations, Mr Trump’s lawyers have claimed that he could have considered the most controversial documents – more than 100 records marked as classified – to be his personal property, the National Archives could not guess him, and even courts would have “one.” very limited judicial control over such categorization.”
They also implied that because the Presidential Records Act gives former presidents and their deputies the right of access to presidential records from their tenure, there was no problem with Mr. Trump keeping them, including classified ones, in Mar-a-See .
And they have claimed that the Presidential Records Act lacks any criminal enforcement mechanism, making it 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.
First, presidents also routinely handle documents created by departments and agencies such as the Pentagon and CIA. As government records, they are instead governed by the Federal Records Act, which contains no provision permitting a President to declare documents his personal property.
The Presidential Records Act states that Presidential records do not constitute “official records of any agency.” A 1993 ruling by the Court of Appeals for the District of Columbia Circuit said the law avoids any “potential overlap of definitions” by making it clear that when a document qualifies as an agency record, it trumps any possibility that it also qualified as a presidential record could be viewed.
“Certainly anything produced by an agency and given to a president would be considered an agency record,” Ms. Kwoka said.
Mr. Aftergood agreed that the authorities’ records retain that status even if they are taken to the White House.
Pointing to this and other apparent shortcomings, Ms Kwoka suggested that Mr Trump’s attorneys could make their claims about the act “to create a lot of confusion about something that doesn’t have to be that confusing” in order to “win.” “. sway part of public opinion or delay the judicial process.”
Why Are Mr. Trump’s Lawyers Saying He May Possess Files Marked Secret?
Based on their premise that the Presidential Records Act is the only relevant statute, they have asserted that “all records disputed in the government’s application” — that is, those marked as classified — can only be presidential records or “personal records, the determination” of what at the discretion of President Trump.”
And they cited a 2012 ruling by Judge Amy Berman Jackson of the Federal District Court for the District of Columbia, arguing that the Presidential Records Act gives outgoing presidents “extraordinary discretion” in deciding whether to designate materials as presidential records should be kept in the national archives or personal records.
Notably, Mr Trump’s legal team has not argued that he actually considered any of the disputed documents to be his personal property. Instead, the lawyers have coyly hinted that he may have done so – in an apparent attempt to persuade the government to back down.
“To the extent that President Trump may have categorized certain confiscated materials as personal during his presidency, any disagreements over such categorization must be resolved under the PRA and may not form the basis of a criminal prosecution,” they wrote.
What are some of the problems with this idea?
First, there may be a timing issue.
In some cases, the Trump legal team is suggesting that Mr Trump may have marked the recordings as personal before leaving office. But at one point in their filing Monday, attorneys hinted that he may still wield that alleged power despite his absence: “Critically, the former president has sole discretion to classify a record as personal or presidential.”
But the same 2012 ruling they cited makes it clear that such a decision “must be made during, not after, the presidency.”
A bigger problem would arise if any of the documents in question were government agency records not subject to the Presidential Records Act, even if presented to the president, agreed Mark J. Rozell, an information rights specialist at George Mason University and the USA, Dean of the Schar School of Policy and Government.
“He can’t just arbitrarily declare government records as his personal property,” Mr. Rozell said.
How far does a former president’s contact rights go?
It’s very likely to be far less expansionary than Mr Trump’s lawyers are suggesting.
Citing a provision of the Presidential Records Act which states that “a past president’s presidential records shall be available to such past president or the former president’s designate,” they have claimed that this means he has “an unrestricted right of access”.
Therefore, they wrote, it is a “civil matter governed by the PRA” and not a legitimate basis for a criminal investigation into whether it was inappropriate for Mr. Trump to keep presidential records in Mar-a-Lago.
This argument takes the access provision out of context. The provision exempts former presidents from general restrictions imposed by the National Archives on public access to presidential records already in its custody. It does not say that former presidents can retain custody of the president’s records indefinitely. And it doesn’t apply to agency records.
Mr Trump’s legal team has also cited this provision to oppose the Justice Department’s proposal to exclude documents marked as classified from the special master’s exam. The attorneys made the novel suggestion that Mr. Trump could appoint the independent arbitrator as his representative, granting that person full access to the files.
What about their claim that there is no enforcement mechanism?
It poses several problems.
Trump’s legal team has argued in various filings that the Presidential Records Act lacks an enforcement mechanism to resolve document disputes between the director of the national archives, known as an archivist, and a former president. Sometimes the lawyers explained this without qualification; other times they have said that there is no “criminal” enforcement mechanism.
“The government is reading an enforcement provision into the Presidential Records Act that does not exist; The law exhorts a past president to work with the archivist to ensure the preservation of the president’s records, but it does not oblige the past president to take specific steps with respect to those records,” they wrote, for example, in a Dec. August .
But the law does have an enforcement mechanism, according to Judge Jackson’s 2012 ruling. A provision therein, she noted, gives the archivist “the power to invoke the same enforcement mechanism found in another statute, the Federal Records Act, can be found”. This law states that the archivist can request the Justice Department to take action to restore missing records – the exact sequence of events that took place.
The Federal Records Act does not specify whether such a claim shall be a lawsuit or a criminal investigation. But it goes on to say that the department may also seek “other remedies provided for by law.”
There are criminal laws that authorize the government to obtain records from people who have no legal right to possess them. The search warrant cited several, including the Espionage Act, which criminalizes the unauthorized keeping of documents related to national defense that could harm the United States or benefit a foreign nation.
“Whether or not it is a presidential record does not answer the question of whether he would have to turn it over to the Justice Department if requested because it still relates to national defense,” said Peter M. Shane, a Legal Scholar in Residence at New York University and specialist in the law on the separation of powers.