Michael Bekesha, the ‘Clinton sock drawer’ lawyer, misses the distinction between agency records and presidential records.
Michael Bekesha, the ‘Clinton sock drawer’ lawyer, misses the distinction between agency records and presidential records.
I ’ve already extensively addressed why the Presidential Records Act (PRA) is not a viable defense against charges that President Trump unlawfully and willfully retained national-defense information under Section 793(e) of the federal criminal code (which, in hope of avoiding Senator Lindsey Graham’s conniptions, I’ll refrain from calling the Espionage Act). So I’ll state the main point as succinctly as I can: Agency records are not presidential records.
Trump’s case is about agency records regarding the national defense — mainly, classified intelligence reporting generated by U.S. spy agencies. The PRA, by contrast, addresses documents and other records generated by and for the president in the carrying out of his duties.
Significantly, the PRA explicitly excludes agency records from the definition of “presidential records.” Under Section 2201(2)(B) the term presidential records “does not include any documentary materials that are . . . official records of an agency.” As if the term agency were not clear enough, the PRA incorporates the definition set forth in Section 552 of Title 5, U.S. Code. (That definition has been moved. In 1978, when the PRA was enacted, it was in Section 552(e); it is now in Section 552(f).) That provision broadly instructs that an agency is
any executive department, military department, Government corporation, Government controlled corporation, or other establishment in the executive branch of the Government (including the Executive Office of the President), or any independent regulatory agency.
Further, the provision broadly defines an agency record to include any information the agency or its contractors maintain in connection with the agency’s operations. Patently, intelligence reports compiled by the Defense Intelligence Agency, CIA, NSA, FBI, and other U.S. national-security agencies are agency records. They are not presidential records by definition and by common sense — i.e., these agencies are created by Congress, their operations are authorized by Congress, they are underwritten with taxpayer funds by Congress, and Congress is empowered to conduct oversight of their activities, which necessitates that agency officials and lawmakers have access to their records.
It is no surprise, then, that the PRA excludes agency records from its coverage.
The remorseless fact that agency records are not presidential records harpoons today’s attempt by Michael Bekesha in the Wall Street Journal to stake out a PRA defense of Trump based on an inapposite case, Judicial Watch v. National Archives and Records Administration (NARA). As I’ve pointed out (here and here), Trump and his defenders have stitched this lower-court ruling to the PRA as a purported defense. Amusingly, Bekesha proclaims that he is well positioned to defend Trump because he is “the lawyer who lost the ‘Clinton sock drawer’ case” — meaning he is now arguing against the position he argued in court.
To repeat, that case did not involve agency records — much less classified reporting by the government’s intelligence agencies. It involved nonclassified tape recordings that President Clinton made with historian Taylor Branch in anticipation of compiling a history of his presidency.
Bekesha was right to argue in the case that the tapes were presidential records, as the PRA defines that term, and that Clinton should thus have archived them with NARA, in accordance with PRA procedures. Instead, the president hid them in a White House sock drawer until his term ended, then took them with him (along with furniture, china, art, and other property the Clintons swiped). Nevertheless, the bottom-line issue in the case was whether NARA had civil-law authority under the PRA to compel Clinton to archive the tapes post-presidency (which would have helped Judicial Watch get access to them, pursuant to the Freedom of Information Act).
That has nothing to do with the issue in the Trump case, which is whether the Justice Department has criminal-law authority to enforce Section 793 in connection with Trump’s unlawful retention of classified agency records — which, to repeat for the umpteenth time, are not presidential records under the PRA.
Note, also, Bekesha’s sleight of hand. He claims that then District Judge Amy Berman Jackson “concluded the government’s hands were tied. Mr. Clinton took the tapes, and no one could do anything about it” (emphasis added). But that’s not what she concluded. She ruled that NARA’s hands were tied, which was the only question before her. She did not and could not credibly have said that no arm of the federal government was authorized to take action to retrieve the tapes. I know you’ll be shocked to hear this, but in 2009, when Judicial Watch began complaining about Clinton’s hoarding of presidential records, the Obama Justice Department had no interest in taking action against the former two-term Democratic president, who had appointed Obama’s attorney general (Eric Holder) as his own deputy attorney general, and who was married to Obama’s secretary of state.
Judicial Watch was thus reduced to nudging NARA to do its job by trying to retrieve the tapes. But Jackson, an Obama appointee, concluded that, as between NARA and Clinton, it was the president, during his presidency, who got to decide whether a record covered by the PRA was either a presidential record that had to be archived, or a personal record that the president could keep for himself.
This goes to a weakness in the Trump PRA arguments that I’ve already highlighted. Even if we ignore that the PRA does not cover agency records, the only documents a president is lawfully permitted to keep without archiving are what the PRA defines as personal records. These are such items as diaries or journals — not agency intelligence reports.
In any event, Judge Jackson’s ruling is unavailing for Trump because the agency reports of national-defense information that he is being prosecuted over are expressly excluded from PRA coverage. But that said, to the extent Jackson reasoned — or is at least being construed as having reasoned — that the president is at liberty to ignore the PRA, that’s just wrong.
Under Section 2203, the president and his staff are supposed to designate documentary materials (which include audio recordings) as either presidential records or personal records “upon their creation or receipt.” Moreover, if the president wants to dispose of materials rather than archiving them, Section 2203 directs that he consult with the archivist and, if they disagree, allow the archivist the opportunity to consult with Congress.
Clearly, Clinton did not comply with the PRA in good faith — what a shock. Berman found that the PRA (a) did not enable NARA to second-guess Clinton’s determination that the tapes were personal records because, implicitly, he had made that decision during his presidency; and (b) did not empower NARA to retrieve the documents from Clinton. On the latter, it’s true that the PRA has no enforcement provisions (we’ll come back to that in a second); on the former, even if NARA lacked its own authority, it could have referred the matter to Congress or the Justice Department to take any action they deemed appropriate. The fact that the judge and NARA had no authority to force other arms of government to take action did not mean that those other arms of government lacked authority to take action — they just lacked interest in taking action.
On the matter of the PRA’s enforcement provisions, Bekesha’s op-ed argument would have more bite if we were talking about what the Biden Justice Department did in connection with the Mar-a-Lago search warrant, as opposed to the Mar-a-Lago indictment.
Recall, with respect to the search warrant, prosecutors and the FBI claimed there was probable cause, not only of Section 793 and obstruction offenses, but also of another criminal statute, Section 2071, which prohibits removing and concealing government documents or files — not just national-defense information but any information.
At the time, I was among the commentators who pointed out that the Justice Department’s inclusion of Section 2071 was controversial. It was thrown into the mix because, for 18 months, NARA had been trying to force Trump to give back all of the government records in his possession. In addition to over 300 documents bearing classification markings, Trump had caused the shipment from the White House to Mar-a-Lago of thousands of other government documents that had never been archived. Trump thumbed his nose at NARA, and NARA could do nothing about it because — as we’ve seen — the PRA does not have enforcement provisions. Had Congress wished to have the statute’s procedures criminally enforced, it could have included in the PRA such crimes as those prescribed in Section 2071. To the contrary, lawmakers decided that would be overkill; they instead trusted presidents to work in good faith with NARA to comply with the PRA’s requirements.
Consequently, by adding the Section 2071 offense to its search warrant, and exploiting that as a basis to seize, not only documents marked classified, but all government records in Trump’s possession, prosecutors were, in effect, amending the PRA to include criminal-enforcement provisions that Congress had declined to incorporate.
In writing the indictment, Biden Special Counsel Smith refrained from including the Section 2071 crime that DOJ had put in the search warrant. This was prudent, especially since Section 2071 had already served its purpose: It expanded the scope of the search warrant enough to enable the FBI to do what NARA couldn’t — retrieve the thousands of files. NARA and DOJ did not want to prosecute Trump for violating the PRA, they just wanted to archive these materials in accordance with the PRA.
Hypothetically, though, if Smith had charged a 2071 offense in the indictment, it would have set up a legal controversy: Was the Justice Department merely enforcing Section 2071, as it is permitted to do, or was it using Section 2071 to criminalize the PRA — i.e., to rewrite Congress’s statute, which it is not permitted to do?
My guess is that the courts would have sided with the prosecutors. The clear terms of Section 2071 indicate that Congress intended it to apply to government officials. Plus, having failed to comply with the PRA’s terms, Trump would have been ill-suited to claim that the PRA gave him immunity from a Section 2071 prosecution. But the issue is not free from doubt.
For what it’s worth, I doubt that Judicial Watch v. NARA would have helped Trump much in this hypothetical situation. Though the former president is understandably treating the “Clinton sock drawer” case as if it were an exalted precedent up there with Marbury v. Madison, it is a really just a questionable opinion by a district court judge who decided, a dozen years after Clinton left office, not to challenge his noncompliance with PRA strictures under circumstances where neither NARA nor the Obama Justice Department had any interest in pursuing the matter. The argument that Michael Bekesha made during the case was better than the antithetical one he posits in the Wall Street Journal today.
But that’s beside the point. To be sure, former President Trump will have arguments to make against the indictment brought by special counsel Smith. But there is nothing illegitimate about the government’s enforcement of both Section 793’s protection of national-defense information and the obstruction statutes. The government’s vital interest in enforcing those criminal laws is patent. And unlike the search warrant, there is no plausible argument that the indictment impermissibly rewrites the PRA — a civil-law provision that applies only to presidential records, not to the agency records at issue in Trump’s prosecution, let alone national-security agency records of secret intelligence.