Ten years ago, a U.S. District Court judge ruled there was no provision in the Presidential Records Act that would compel the National Archives to seize records from a former president. The 2012 case has “direct relevance” to the FBI’s decision to raid Mar-a-Lago earlier this month, and could impact upcoming legal battles, according to Just the News.
In her Judicial Watch v. National Archives and Records Administration opinion, Judge Amy Berman Jackson in Washington D.C. rejected the conservative watchdog’s suit to force the Archives to seize hours of audio recordings that former president Bill Clinton made during his presidency with historian Taylor Branch.
She noted that any challenge to a former president’s handling of records is the responsibility of the National Archives (NARA), and any enforcement mechanism initiated by them and the attorney general would be a civil procedure, and have no criminal penalty.
Jackson also said “the President is completely entrusted with the management and even the disposal of Presidential records during his time in office.”
The audio tapes in question were kept in Bill Clinton’s sock drawer at the White House, according to Branch, who wrote about the interviews in his chummy 2009 book, The Clinton Tapes: Wrestling History with the President.
“Finding room for the tapes wasn’t hard because Clinton “had a lot of socks,” Branch said in an appearance at the Clinton School of Public Service at the University of Arkansas in 2007.
Some legal experts believe the case could have “significant impact over the FBI search of Melania Trump’s closet and Donald Trump’s personal office,” Just the News reported.
In her ruling, Jackson made declarations that they believe have direct relevance on the FBI’s decision to seize Trump’s handwritten White House notes and files from his Mar-a-Lago residence—namely, a president’s discretion on determining what are personal vs. official records, and his his right to declassify or destroy records at will.
“Under the statutory scheme established by the PRA, the decision to segregate personal materials from Presidential records is made by the President, during the President’s term and in his sole discretion,” Jackson wrote in her March 2012 decision against Judicial Watch.
The judge made clear that presidents have the right to destroy any records they want during their tenure and their only responsibility is to inform the Archives.
“Since the President is completely entrusted with the management and even the disposal of Presidential records during his time in office, it would be difficult for this Court to conclude that Congress intended that he would have less authority to do what he pleases with what he considers to be his personal records,” she added.
Jackson’s full ruling can be read here.
She said it was unreasonable to force NARA to seize tapes a president has concluded were personal.
“Because the audiotapes are not physically in the government’s possession, defendant submits that it would be required to seize them directly from President Clinton in order to assume custody and control over them,” Jackson wrote. “Defendant considers this to be an ‘extraordinary request’ that is unfounded, contrary to the PRA’s express terms, and contrary to traditional principles of administrative law. The Court agrees.”
The defendant in the case was “the same Justice Department that authorized the raid on Trump’s estate,” Just the News’ John Solomon notes. The DOJ’s arguments for allowing the Clinton sock drawer tapes to remain private can be read here.
Jackson also concluded that a decision to challenge a president’s decision lies solely with the National Archives and can’t be reviewed by a court. If the Archives wants to challenge a decision, that agency and the attorney general can initiate an enforcement mechanism under the law, but it is a civil procedure and has no criminal penalty, she noted.
The search warrant the FBI enforced sought two types of records: classified materials and records created during the Trump presidency. Trump has been adamant the records he took to Mar-a-Lago were both declassified and deemed personal by him.
Some government lawyers reached out privately to Just the News in recent days questioning the use of the FBI to collect presidential records, citing Jackson’s ruling and suggesting it was a civil and not criminal matter where deference to Trump is required by law.
On the classification issue, both Presidents George W. Bush and Barack Obama signed executive orders — which remain in force to this day — declaring that presidents have sweeping authority to declassify secrets and do not have to follow the mandatory declassification procedures all other government officials do.
Considering Jackson’s ruling and the fact that presidents have broad declassification powers, it’s hard to justify the FBI raid of Trump’s Florida estate, experts say.
Kevin Brock, former assistant FBI director for intelligence, told Just the News that the bureau’s overly broad search warrant “went beyond what the FBI manual for agents recommended.”
“Specificity is important in order to protect fourth amendment rights from exuberant government overreach designed to find whatever they can,” Brock said.
The warrant, he added, “apparently makes a novel legal assertion that any presidential record kept by a former president is against the law. You have to wonder what the other living former presidents think about that. They have the right and, apparently, clear desire to remain silent.”
“There is a direct line between Bill Clinton’s sock drawer and the raid on Melania’s closet, Solomon quipped at the beginning of his interview with Tom Fitton, the president of Judicial Watch, on Wednesday.
Fitton said that he believes Jackson’s 2012 ruling could have a major impact on the coming legal battles over the Mar-a-Lago raid.
“The government, the lawyer for the Archives, said, ‘You know what? If documents are in the former President’s hands, where they’re presumptively personal, we just, you know, we presume they’re personal,'” Fitton said.
“The Justice Department previously had told us in response to a question about Bill Clinton: ‘Tough luck, it’s his.’ But they changed their mind for Donald Trump?” he asked. “… The law and court decision suggests that Trump is right. And frankly, based on this analysis, Trump should get every single document they took from him back. It’s all personal records.”
.@JudicialWatch President @TomFitton describes how finding out about audio tapes in Bill Clinton’s sock drawer led to DOJ and legal precedent regarding presidential records possessed by former presidents.#JustTheNewsNotNoise @jsolomonReports @AmandaHead pic.twitter.com/uXHLRd3tWV
— Real America's Voice (RAV) (@RealAmVoice) August 18, 2022