The MAL case - records seized from Mar-a-Lago

Judge Cannon, who is overseeing the MAL case, wrote the following as part of a guide on how lawyers for both sides can instruct juries:

 

I’m not a lawyer, but I was a History major in college and have done quite a bit of independent reading in it. President Reagan’s records were the first to be stored under the 1978 Presidential Records Act (PRA). This Act held that the records that were to be stored by the National Archives and Records Administration (NARA) were:

any records generated during a Presidential administration documenting the constitutional, statutory or ceremonial duties of the Presidency are the property of the United States.

Note that this description includes absolutely nothing about the President having any discretion to designate any records as “personal.” The Clinton Sock Drawer case did not help matters because it held that NARA had no authority to seize records that it deemed to be official. This is why Special Counsel Smith has not pursued charges using the PRA. Nevertheless, the former National Archives litigation director Jason Baron, who is now a professor at the University of Maryland and Bradley Moss of the Mark S. Zaid law firm hold that the audiotapes that Clinton produced with historian Taylor Branch were clearly personal records as they “were in the nature of a diary or journal in recorded form.” The records seized at Mar-a-Lago, OTOH, Judicial Watch’s Tom Fitton (Not a lawyer, BTW) testified to a grand jury that “shows Trump had unfettered power to designate documents as personal records outside of the reach of the National Archives.”

The piece above explains that this theory has never been tested, but the obvious problem is, if this interpretation were accurate, then in theory, if Trump were to get back into office for a second term, he could order Seal Team Six to kill the former President Biden and then designate the official communications whereby he transmitted that order as private, personal records.

Also, please note the sloppy and insecure manner in which the ex-President Trump stored records at his jazzed-up country club, Mar-a-Lago. Many empty folders were found among the records that were retrieved. Trump himself may have removed the contents. My own theory is that persons unknown rifled through the unsecured boxes, pulled out classified documents and stashed them in a shopping bag, backpack, briefcase, whatever. Classified documents are written on standard office paper where folders are made of card stock. It was simply inconvenient and unnecessary for our document thieves to carry folders with them. Of course, how many classified documents stored in folders, were simply taken wholesale, we would only know by looking a what documents are still not recovered. If records are collected by NARA, they are carefully sorted, packed up and then organized under secure conditions.

And again, giving the President the authority to arbitrarily decide whether a record was private and personal or official, that is, whether the President could store it on his own or needed to turn it over to NARA means he can simply hide records of misdeeds.