Trump's favorite defense in the documents case has more holes than an old sock. By Liz Dye

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Trump's favorite defense in the documents case has more holes than an old sock

Liz Dye

13 - 16 minutes

Trump gives up a thumbs up as he leaves a federal courthouse in Miami following his arraignment earlier this month. (Scott Olson/Getty)

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Has Donald Trump discovered one weird trick to defeat the 37-count indictment dropped by special counsel Jack “DERANGED” Smith in the documents case?

The former president has repeatedly declared that something he refers to as “THE CLINTON SOCKS CASE … TOTALLY EXONERATED ME.” The below Truth Social post from last week is a representative example, though many others of Trump making the same claim could be cited. (Including a Truth Social post from Wednesday.)

You’ll be shocked to learn that Trump is wrong. There is no “SOCKS CASE” that empowers a president to declare national security secrets personal property and store them by the pool in his country club.

There is a 2012 decision by US District Judge Amy Berman Jackson refusing to order the National Archives (NARA) to go seize documents from Bill Clinton. From this, Trump and his minions mistakenly infer that the president’s characterization of a document as personal can never be challenged, and that NARA has no means of retrieving government property from an ex-president. 

That is a gross mischaracterization of both the court’s holding and the Presidential Records Act — AKA, it’s a bald-faced lie. 

Or, to be more accurate, it’s a series of four nested lies:

    That the president has absolute authority to designate any document as “personal” and keep it when he leaves office;

    That this designation is unreviewable by any court;

    That the Presidential Records Act (PRA) has no enforcement provision; and

    That Trump’s indictment is based on a violation of the PRA.

As ultra-conservative Judge Michael Luttig wrote on Twitter when the indictment was unsealed, “There is not an Attorney General of either party who would not have brought today’s charges against the former president.”

Prior to Richard Nixon, a president’s records were presumed to be his personal property. But in 1974, fearing that Nixon would destroy evidence of his crimes, Congress passed the Presidential Recordings and Materials Preservation Act (PRMPA), making Nixon’s official records government property. In 1977, the Supreme Court upheld the PRMPA, and the next year Congress codified the rule for all future presidents via the PRA. 

The PRA tasks the president with maintaining his official records and handing them over to the Archivist at the conclusion of his term. It defines personal records as “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,” and gives as examples diaries and materials relating to campaigning for reelection.

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Notably, it says that, “During the President’s term of office, the President may dispose of those Presidential records of such President that no longer have administrative, historical, informational, or evidentiary value if … the President obtains the views, in writing, of the Archivist concerning the proposed disposal of such Presidential records; and … the Archivist states that the Archivist does not intend to take any action under subsection (e) of this section.”

It does not say “The president gets to stuff nuclear secrets in his suitcase and call them personal property, and no one can challenge him.”

So, why does Trump keep saying that?

In 1993, President Clinton began recording interviews with historian Taylor Branch late at night. Clinton stored the 79 cassette tapes, which formed the basis of Branch’s 2009 book, “The Clinton Tapes,” in his sock drawer, and took them with him when he left the White House. 

In response to a 2009 FOIA request from the conservative activist group Judicial Watch, the National Archives said that it didn’t have the tapes, had never had the tapes, and that the Archivist was “of the opinion that the audio tapes created by Taylor Branch are personal records of President Clinton as defined by the PRA.” 

President Bill Clinton and Socks the cat (no relation to the socks case) in December 1993 (Smith Collection/Gado via Getty)

Judicial Watch claimed that was a final agency determination, which it purported to challenge under the Administrative Procedure Act (APA). So in 2010, a mere nine years after Clinton left office, Judicial Watch sued the National Archives, demanding that it declare the tapes a presidential record and go get them so that Judicial Watch could then sue for their release under FOIA. 

Judge Jackson rejected this challenge, writing that the archivist is tasked with “responsibility” for presidential records and “If certain records are not designated as Presidential records, the Archivist has no statutory obligation to take any action at all, and there is nothing to compel under the APA.” 

To be fair, there are several passages in the order which imply that the archives cannot second guess a president’s decision that a document is personal in nature. For instance, the court writes, “the PRA does not confer any mandatory or even discretionary authority on the Archivist to classify records. Under the statute, this responsibility is left solely to the President.” And indeed Trump’s supporters confidently cite those passages in support of their argument. But in so doing they ignore the fact that Judge Jackson based her opinion on 44 U.S.C. § 2203(b), which says that documents floating around the executive branch “shall, to the extent practicable, be categorized as Presidential records or personal records upon their creation or receipt and be filed separately.” 

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In practical effect, this means that documents need to be classified as personal or presidential at the time of creation, or at the time of receipt, like by, say, sticking tapes of private conversations with your biographer in a box hidden in your sock drawer. By contrast, the president can’t decide in 2020 that a presidential daily brief from some random day in 2019 full of classified military secrets is a cool thing he’d like to take home and stash in the desk drawer at his private club. 

Classifying a document as personal doesn’t change the classification status or remove national defense information, and there’s an argument that documents which are agency records can’t be magically transmogrified into the president’s personal property, but those issues are beyond the scope of this article. The important thing to know is that the Judicial Watch holding pertains to the inability of a private party to sue the National Archives and force it to challenge the president’s determination that a record is personal — not whether the agency itself has the ability to mount such a challenge.

CNN reported in August that Tom Fitton, the head of Judicial Watch and not a lawyer, convinced Trump that he didn’t have to comply with the Justice Department subpoena for classified documents. It’s impossible to know if Trump would have behaved so recklessly in defying the grand jury subpoena for classified documents last summer without Fitton feeding him nonsense. But as an anonymous source told CNN, “The moment Tom got in the boss’s ear, it was downhill from there.”

Trump even had Fitton brief his lawyers, who were apparently not all that impressed. If those lawyers thought Fitton’s claims were remotely persuasive, they’d have taken them to the court and moved to get the DOJ’s subpoena quashed instead of signing a false declaration saying that he’d complied with it. 

RELATED FROM PN: Meet Tom Fitton, the charlatan who has Trump’s ear

"He could have given the documents to the government and then sued to bring them back and made his legal arguments as to why they're really his," former Attorney General Bill Barr said recently on Fox. "But he didn't do that. What did he do? He engaged in an outrageous act of obstruction and deception that obstructed that subpoena. And that is wrong. That's a violation of law. That's a serious problem for him."

Trump responded by calling Barr was “a coward who didn't do his job” and continued to heed the sage advice of his buddy Tom.

“Under the Presidential Records Act — which is civil, not criminal — I had every right to have these documents,” he told supporters at his New Jersey golf club last week after being arraigned in Miami. “The crucial legal precedent is laid out in the most important case ever on this subject, known as the Clinton socks case.”

In fact, the holding in the “Socks Case” contains quite a bit of language which Trump wouldn’t like if he actually read it. For instance, Judge Jackson laid waste to the oft-repeated claim that the PRA contains no enforcement mechanism: “The PRA authorizes NARA to invoke the same enforcement mechanism embodied in the Federal Records Act, which begins with a request to the Attorney General to institute an action for the recovery of missing records.” 

There’s also this passage with the court openly mocking the attorney in this case:

    Plaintiff’s indulgence in wishful thinking in order to minimize the ramifications of its own lawsuit underscores the lack of redressability fatal to the case. It is telling that counsel for plaintiff was repeatedly unable to identify anything specific the Court could or should order the Archivist to do under these circumstances: 

    THE COURT: What does “assume custody and control” mean in your view? What do you want them to do?

    [PLAINTIFF’S COUNSEL]: Because they are also required to make them available to the public, “assume custody and control” would be to take control of the records or have somebody else take control of the records …

    THE COURT: How do they take control? … He issues a press release[:] I’ve got them … Then what? What are they supposed to do? 

    [PLAINTIFF’S COUNSEL]: As I said, there are many options. 

    THE COURT: Tell me one. 

    [PLAINTIFF’S COUNSEL]: One option is they can call President Clinton and ask … 

    THE COURT: Okay. He says no. Now what? 

    [PLAINTIFF’S COUNSEL]: They write a nice letter. They maybe use one of these enforcement mechanisms. Maybe they try something else.

“[PLAINTIFF’S COUNSEL]” was Michael Bekesha, who just this week wrote an opinion piece in the Wall Street Journal claiming that “The Presidential Records Act allows the president to decide what records to return and what records to keep at the end of his presidency. And the National Archives and Records Administration can’t do anything about it.” So, take his representations with a huge grain of salt.

But if Trump is looking for precedent on the PRA in the US District Court in DC, he doesn’t have to reach back eleven years to find it. In March, Judge Colleen Kollar-Kotelly ordered Trump adviser Peter Navarro to turn over government emails stored on his encrypted ProtonMail account. Navarro, who shares a lawyer with Trump’s co-defendant Walt Nauta, had argued that the PRA lacks an enforcement mechanism.

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But the court ruled that the DOJ had every right to file a civil suit to force Navarro to return its property.

“Enforcement of the statute by the government to assert its ownership rights militates that it must be free to utilize those legal processes available to it whether or not they are expressly provided for by statute,” Judge Kollar-Kotelly wrote. “In this instance, the United States correctly invokes the Court’s judicial power to require the return of the wrongfully retained emails.”

In point of fact, Trump is charged with 31 counts of willful retention of national defense information; one count of conspiracy to obstruct justice; one count of withholding a document or record; one count of corruptly concealing a document or record; one count of concealing a document in a federal investigation; and one count of scheme to conceal. 

Exactly none of those charges is for violating the PRA, which, according to both the “Clinton Socks Case” and the “Navarro Emails Case,” empowered the government to use civil process, i.e. a subpoena, to retrieve its stuff. The fact that Trump decided to commit additional crimes by defying it is due to his own stupidity and tendency to disregard the advice of lawyers in favor of charlatans.

“He has dared, taunted, provoked, and goaded DOJ to prosecute him from the moment it was learned that he had taken these national security documents,” Judge Luttig wrote on Twitter, adding, “After a year and a half, he finally succeeded in forcing Jack Smith’s appropriately reluctant hand, having left the Department no choice but to bring these charges lest the former president make a mockery of the Constitution and the Rule of Law.”

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