The former president’s reluctance to acknowledge his claim out loud in the interview with Megyn Kelly is understandable — since it sounds crazy.
The former president’s reluctance to acknowledge his claim out loud in the interview with Megyn Kelly is understandable — since it sounds crazy.
Author’s Note: This is Part One of a two-column series.
A s the former president careens from I’m happy to chat with Megyn Kelly mode to Megyn Kelly is so “nasty” mode, Rich Lowry and I got to kibbitz on the podcast about what a great job Megyn did in the Trump interview: Just the right blend of being respectful, allowing him to make his points, but not losing control of the witness — politely but firmly challenging him with tough questions that drew revealing answers while illustrating her diligent preparation.
I’ve had lots of discussions with Megyn over the years, and the best of her many talents is to cut to the chase. Many of her guests, especially politician and lawyer (ahem) guests, can be meandering when they are pushed to address a topic they’d prefer to avoid. She’s invariably armed with a line of questions that gets to the point. She did that with Trump, particularly on his murky theory that the Presidential Records Act (PRA) is a complete defense for him against special counsel Jack Smith’s charges that he unlawfully retained national-security information.
Trump filibustered about how he’s covered by the PRA, how it puts him in charge of the documents, how it’s a civil-law provision (not criminal) with no enforcement mechanism, and how he could therefore do anything he wanted with the documents. Megyn pierced through the logorrhea by bracing him with the full implication of his argument: Is he seriously claiming that every intelligence-agency report he was shown, no matter how sensitive, was his to do whatever he pleased with? Here’s the exchange (beginning a little before the 42-minute mark of the interview):
Kelly: Do you believe that every CIA document that came to you as president was automatically yours to keep, no matter what?
Trump: I’m not gonna answer that question —
Kelly: So that’s the dispute.
Trump: No, no — because I think it’s clear in the document. [ACM note: He means the PRA.] The Presidential Records Act was a very complex thing. . . .
Trump went on to not answer the question, which is telling. But the answer is clear nonetheless: Yes, Trump is claiming that every classified intelligence-agency report shown to him by national-security officials became not just a presidential record but his personal property, to do with as he pleased — including taking them out of the White House or other government safekeeping and shipping them down to Mar-a-Lago, the Palm Beach resort club where he keeps his main residence.
The former president’s reluctance to say this out loud is understandable. It sounds crazy (“frivolous” is a word I’ve used to dismiss the PRA defense). At this point, too much crazy talk (at least on this subject) would not serve his interests. With the trial still several months away, his present aims are to win the case in the court of public opinion and to sway the eventual jury pool. (He has a much better shot portraying himself as the victim of a political vendetta with the presumably sympathetic south Florida jury pool in the documents case than with the Washinton, D.C., jury pool he’ll face in Smith’s other Trump prosecution, the so-called January 6 case.)
Plus, Trump is running for president. I daresay most Americans – very much including the vast majority who are not Trump fanatics — believe a person would be grossly unfit for the presidency if he insisted that our country’s most precious defense secrets, generated by intelligence agencies underwritten by close to $100 billion of our tax dollars per annum — the secrets whose falling into the wrong hands would gravely harm national security — were his personal property, to do with as he wished, including turning into coffee-table reading at a beach resort. This, indeed, has always been the biggest problem the Mar-a-Lago documents scandal poses for Trump: Even if he were right that the law allowed him to declassify anything he wanted to and retain it outside government safekeeping in a place that would not be much of a challenge for competent foreign-intelligence services to penetrate, why would anyone who cared about our nation’s security do something so irresponsible?
So that is why the former president is not ready to acknowledge that his legal theory is exactly what Megyn Kelly stated it to be in her question: Intelligence-agency reports he was given by national-security officials became his personal property. He will reserve that for pretrial litigation and then the trial. At that point, while the lawyers press his theory, he’ll claim he’s not up on everything the lawyers may be saying, he just knows that he is completely covered by the PRA — and that prosecutor Jack Smith knows it too, which is why he didn’t mention the PRA in the indictment, blah, blah, blah. (By the way, an indictment is a formal accusation; prosecutors are obliged only to outline the charges, not to mention defense theories, particularly statutory defenses.)
Okay, but . . . is Trump really covered by the PRA in the sense of its being a complete defense to the unlawful retention charges?
No. To be more precise (because Trump’s rambling assertions confuse this point), he, as a former president, is certainly covered by the PRA, but the terms of the PRA do not make agency records or presidential records a president’s personal property. Still, the fact that the former president’s argument is a loser doesn’t mean there is nothing to it. So let’s try to wrap our brains around it.
We usually think of presidential records as documents a president and his White House subordinates produce. Yet, under PRA §2201(2), presidential records include documents “created or received by the President, the President’s immediate staff” and others in the Executive Office of the President. (Emphasis added.) By its plain text, then, the PRA contemplates that the president will receive documents from government agencies; ergo, the Trump defense argues, those documents become presidential records.
Not so fast, we naysayers reply: The very same PRA provision, in subsection (2)(B), expressly excludes agency records from qualifying as presidential records. Agency records must be preserved by the government under the Federal Records Act — they are not presidential records, much less personal records of a president.
Au contraire, counters Team Trump; we skeptics are failing to read subsection (2)(B)’s fine print. They’re right about that. In fact, I’d freely concede that this subsection is a mess: In a rare attempt to be succinct, lawmakers adopted the definition of agency records found in FOIA — the Freedom of Information Act, codified in §552 of Title 5, U.S. Code; but in doing so, they mistakenly cited the wrong FOIA section, thereby confusing everyone.
To clarify: The reason many of us have argued that agency records are excluded from the PRA is subsection (2)(B)’s pronouncement that the term presidential records “does not include any documentary materials that are (i) official records of an agency.” But now the fine print: subsection (2)(B) caveats that when it refers to official records of an agency, it means as that term is “defined in section 552(e) of title 5, United States Code)[.]” I’ve italicized §552(e) to highlight the mistake I referred to above: In point of fact, the definition of official agency records is codified, not in 552(e), but in §552(f).
FOIA (§552) is a long statute. Subsection 552(f) — again, the provision the PRA meant to borrow from FOIA in order to explain what is not a presidential record — separately defines both agency and record. The former is straightforward: Agency includes any government component, including executive-branch intelligence agencies. Trump defenders, however, seize on the definition of record (§552(f)(2)(A)) because of a quirk of FOIA that is not apparent at first blush. This definition states that a record
includes . . . any information that would be an agency record subject to the requirements of this section when maintained by an agency in any format, including an electronic format[.] [Emphasis added.]
Trump defenders stress that, undert the italicized caveat, unless an agency record is subject to the requirements of the FOIA statute in its entirety, it does not count as an agency record even if it appears otherwise to be a record maintained by an agency. And since the PRA adopts FOIA’s definition of official agency records, Trump defenders contend — plausibly, but not ineluctably — that what is true of FOIA must also be true of the PRA.
Consequently, Team Trump directs everyone’s attention to another provision of FOIA, §552(b), which deals with records that are not subject to the requirements of FOIA. Specifically, §552(b)(1) states that FOIA
does not apply to matters that are (A) specifically authorized under criteria established by an Executive order to be kept secret in the interest of national defense or foreign policy and (B) are in fact properly classified pursuant to such Executive order[.] [Emphasis added.]
So there you have it: By its clear terms, FOIA excludes national-defense secrets and other classified information from its coverage. Hence, Trump defenders maintain, if classified agency reports are excluded from FOIA’s definition of agency records, they must also be excluded from the PRA’s definition of agency records. They are, therefore, presidential records governed by the PRA, not agency records that must be separately maintained in government file-keeping under the aforementioned Federal Records Act.
Before we get to how this theory falters, let’s pause to consider how crazy its implications are. Trump defenders are saying that if, say, the Agriculture Department handed then-president Trump a dry, non-classified report outlining mundane crop-production statistics, he could not keep that because it’s an agency record, not a presidential record. By contrast, they insist that if the Defense Intelligence Agency produced a top-secret report outlining American security vulnerabilities that China’s armed forces could exploit to defeat us in a war, that would not be an agency record; it would be a presidential record that Trump, in his sole, unreviewable discretion, could deem his personal property and lawfully use as wallpaper in a chandeliered Mar-a-Lago lavatory.
Does that seem right to you?
Of course it’s not right, and for several reasons. Mainly it’s not right because Trump ignores that the driving purpose of the PRA is to preserve presidential records as government property, to be kept in government safekeeping. The former president, to the contrary, claims that if agency intelligence reports technically qualify as presidential records, they perforce transmogrify into a president’s personal records. In Part Two of this two-column series, we’ll get to why Trump’s PRA theorizing is untenable.