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.
