Frivolous Trump Argument No. 1: Classified Intelligence Reports Compiled by Government Agencies Are ‘Personal Records’ under the Presidential Records Act

Trump defenders argue that the agency intelligence reports he took with him from the White House when his term ended, then stored in his Mar-a-Lago estate and resort club, were “personal records” that belong to him, pursuant to the Presidential Records Act (Chapter 22 of Title 44, U.S. Code). Leaping from this premise, they contend that Congress, in enacting the PRA in 1978, implicitly superseded the 1917 Espionage Act (Section 793 of the criminal code, Title 18), at least insofar as the latter had been applicable to presidents. Ergo, the argument goes, Trump cannot properly be charged with unlawfully and willfully retaining national-defense information — as he was last week by Biden Justice Department special counsel Jack Smith.

These are frivolous claims.

I would like to give Trump apologists the benefit of the doubt that they are simply confused about the scope and purpose of the PRA, rather than that they are blind loyalists who are swaddling their What about Hillary? pique in some statutory raiment — hoping no one notices it doesn’t fit. So let’s go with confusion . . . which begins with conflation of two related but different concepts, ownership and control.

The American people spend roughly $5 trillion per year on the operations of their government. The reports of official business that government agencies generate belong to us, not to government officials who staff executive agencies, and not to the president, who is the chief executive. The president — within the bounds of the law — has control over government records during his term in office. But he does not own them, and they are not his property.

Notice that many of those now demanding that Trump get a pass nevertheless argued that former secretary of state Clinton should be prosecuted for embezzling government records. Clinton, of course, falsely contended that the tens of thousands of emails she deleted and tried to destroy were her private property — correspondence over her private email accounts, via her private servers and domain, that supposedly dealt with her daughter’s wedding, yoga routines, and the like. She was forced into this preposterous lie because she understood that, if she had used her private email system to conduct State Department business (as she was found to have done), statutes and regulations required such correspondence to be conducted over the government email system and otherwise preserved in government files. Such emails themselves were government records. They were the property of the United States, not of Clinton. They were agency records. She had no right to destroy them (let alone destroy them after Congress had issued a subpoena for at least some of them).

That brings us to the PRA.

That this statute was enacted post-Watergate implies something important, which is made explicit in the text: The PRA has nothing to do with agency-generated records, such as the reporting generated by the Defense Department, the CIA, the NSA, the FBI, and other intelligence agencies. The PRA is not directed at reports of activities carried out by executive agencies that Congress created, authorizes, and funds, and as to which it conducts oversight of their operations (a big part of why record-keeping is required).

Rather, the PRA relates to records that the president himself generates, or personally causes to be generated, during the presidential term.

Specifically, the PRA is directed at materials, such as President Richard Nixon’s White House tapes, which were at the heart of the Watergate scandal that inspired the PRA’s enactment. The PRA endeavors to sort out which of such presidentially generated records belong to the American people because they record government action, and which are the president’s personal property because — though they are created during the presidency and may relate to the presidency — they reflect the president’s personal deliberations, in the nature of, say, a diary.

To the extent that the president generates records that reflect the conduct of his official  duties, the PRA broadly defines those as presidential records (under Section 2201[2]) and makes clear that they are owned by the American people, through their government. The president gets to control them during his term, but they are government property (under Section 2202) and must be archived.

The PRA carves out an exception for personal records of the president (under Section 2201[3]). Chunks of this exception (subsections B and C) are not really relevant to our present concerns; they relate to partisan political and electoral activities that “have no relation to or direct effect upon the carrying out of constitutional, statutory, or other official or ceremonial duties of the president.” Putting them aside, let’s quote in full, the part of the PRA’s personal records definition that, according to Trump defenders, bears on the documents in the indictment:

The term “personal records” means all documentary materials, or any reasonably segregable portion thereof, of a purely private or nonpublic character which do not relate to or have an effect upon the carrying out of the constitutional, statutory, or other official or ceremonial duties of the President. Such term includes—(A) diaries, journals, or other personal notes serving as the functional equivalent of a diary or journal which are not prepared or utilized for, or circulated or communicated in the course of, transacting Government business. [Emphasis added.]

As you can see, it’s surprising that people who want to be taken seriously would contend that top-secret, close-held intelligence reports compiled by U.S. spy agencies were analogous to a president’s personal journal or diary. Of course, Trump defenders are not really making that contention — they’re cynically assuming you won’t read the very simple laws they’re babbling about.

Still, it’s not enough to observe how undeniable it is that the intelligence-agency documents pertaining to national defense described in the indictment could not conceivably be deemed a president’s personal records, as defined by the PRA. More fundamentally: They’re not presidential records at all.

We should never even reach the self-evidently silly claim that agency intelligence reports were President Trump’s personal records, because they are not even presidential records (of which, as explained above, the president’s personal records are a subset excepted from archiving). Though he was president when he was shown the intelligence agency reports, those reports were not generated by the president. They were generated by the agencies. They record agency operations that would be conducted regardless of who was president, and would by law have to be recorded and maintained for congressional oversight review, among other legal purposes.

But wait, say Trump defenders, the PRA has no enforcement mechanisms. It is just guidance for the president, who gets to decide what constitutes personal property. The PRA does not empower the National Archives and Records Administration (NARA) or anyone to second-guess a president’s determination. A federal court has said as much in a case involving President Clinton’s retention of records, the Trump camp insists.

Not true.

First, the law gives the president discretion to designate what is personal property within the parameters Congress has set out in the PRA. Under those parameters, an agency intelligence report is simply not a president’s personal record — the way a diary is a personal record.

Before we get to more legal technicalities, a commonsense point bears making: A president takes a constitutional oath to execute the laws faithfully. How on earth could a president, who was honoring his oath to execute the PRA faithfully, designate piles of intelligence-agency reports as personal property?

Of course, he could not. That, no doubt, is why there is no evidence that Trump made any such designation during his presidency. Under the PRA, presidents are required to document their official acts (see Section 2203[a]). Neither Trump nor his apologists have the audacity to claim that, while he was president, he issued orders designating highly sensitive national-defense information generated by publicly funded intelligence agencies as his personal property. Doing so would have been scandalous. It would, moreover, have illustrated that Trump had prioritized the lawless retention of personal mementos over the nation’s defense. That would have been an impeachable offense.

Now, back to the law. In order to designate documents as personal records, rather than presidential records under the PRA, two conditions must be met. First, the documents must be within the parameters of Congress’s definition of personal records; second, the person making the personal records designation must be the incumbent president (see Section 2203[f]). Once the president’s term is over, the PRA (Section 2203[g]) provides that “responsibility for the custody, control, and preservation of, and access to” presidential records shifts to NARA, not to the former president.

As I’ve previously explained, this is the lesson of the Clinton-related ruling by a federal lower court that Trump and his supporters keep citing, Judicial Watch v. NARA (2012). That case had nothing to do with agency reports, let alone classified intelligence; at issue, to the contrary, were nonclassified recordings that President Clinton made with historian Taylor Branch. This was a personal project: the publication, after Clinton’s terms ended, of an oral history of his presidency. That is, the tapes were in the nature of a presidential diary or aide-mémoire, not a government-agency report.

Moreover, the court found that Clinton had concluded that these materials he personally generated were his personal property while he was president. Again, there is no evidence that Trump took any formal action to designate classified agency intelligence reports as his personal property while he was president — no doubt because there was no rational claim that they were his personal property.

Removing intelligence documents from the Oval Office to the White House residence, piling them up, and eventually sticking them in boxes to be shipped to Florida, is not the functional equivalent of formally designating documents as personal records. If Trump wanted what he contends was the protection of the PRA, he would have had to comply with its terms.

Under the PRA (Section 2203[a]), presidents are required to ensure that presidential acts and directives are “adequately documented and that such records are preserved and maintained as Presidential records.” This duty to document would have been essential given the anomaly here: a president who was supposedly designating as his personal records what were actually agency intelligence reports — i.e., reports that were not even presidential records, much less Trump’s own property. No one would assume a president would do something so ridiculous; since it would be contra law, we would need to see a document in which Trump formally did this to believe he had done it.

Not surprisingly, there is no such document setting forth such a personal records directive. And now that Trump is no longer president, he lacks even theoretical authority to designate documents as personal records — a fact that shouldn’t trouble him too much since agency intelligence files are not personal records.

Since Trump’s PRA argument is unavailing, we shouldn’t need to grapple with whether Congress, in enacting the PRA, superseded the Espionage Act. But the suggestion is frivolous in any event.

The Supreme Court does not indulge speculation that, in enacting a later law, Congress may have repealed an earlier law sub silentio. If lawmakers intended the PRA to modify the Espionage Act such that presidents were immune from the latter, they would have said so. They did not. No surprise there: The provisions address vastly different matters and can easily be read in conjunction.

The PRA is a civil-law statute to provide guidance for the archiving of presidential records. The Espionage Act is a criminal statute prescribing severe penalties against people, including top government officials, who mishandle national-defense information. When statutes can sensibly be read harmoniously, they are not supposed to be construed as if they were antithetical. Here, the two provisions can easily be read harmoniously; indeed, it is Trump defenders who must strain mightily to claim there is any conflict. There is not a shred of a basis to believe that Congress, without mentioning it, was modifying the Espionage Act when, 60 years later, it passed the PRA — which is no doubt why, up until now, in the near half-century that the PRA has been on the books, no one has suggested such a thing.

The Trump camp’s PRA contentions may impress Vivek Ramaswamy. They will get the back of the hand from federal courts if Trump’s lawyers are foolish enough to undermine their credibility by pressing them.