↓
 
Home » Clinton’s drawer and Trump’s boxes

Clinton’s drawer and Trump’s boxes

The New Neo Posted on by

Commenter “Bauxite” writes:

On page 5 [of the Presidential Records Act] – “NARA takes legal custody of records at the end of the President’s term.” The documents can be stored in a presidential library, eventually, but the presidential library has to be “maintained by NARA.”

The exception is “personal records.” That’s the Bill Clinton sock drawer case. The court in the Clinton case held that the interview tapes were “personal records” not “presidential records.” Therefore, Clinton’s sock drawer tapes were held to be his personal property that was not subject to a Freedom of Information Act request.

The Clinton case really doesn’t help Trump.

Law’s a funny thing, though. It’s not that simple.

Obviously, cases don’t need to have the exact same fact situation in order to be relevant or even controlling. Otherwise, Trump would have had to have interview tapes in his sock drawer in order to be exactly parallel to the Bill Clinton ruling. I don’t think Bauxite was asserting that the situation had to exactly match, but I do think he was implying that somehow, because certain facts were different, the same reasoning doesn’t apply.

But in order to know that, one would need to know what principle or principles were operating in each case, and why. And that – as you probably know – seems to often depend on the political outlook and legal theory of the person doing the deciding – that is, the judge or justice. It is almost always possible to argue any position. That’s what lawyers do, and a good lawyer can do it quite convincingly.

So you can find, if you do a Google search, plenty of people – all of them Democrats, ordinarily, or Trump haters – who will agree with Bauxite’s point of view and will argue it in greater detail. And you can find the opposite arguments from more conservative sources. One of them can be found here. It’s by Judicial Watch attorney Michael Bekesha:

Although the indictment against Donald Trump doesn’t cite the Presidential Records Act, the charges are predicated on the law. The indictment came about only because the government thought Mr. Trump took records that didn’t belong to him, and the government raided his house to find any such records.

This should never have happened. 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. I know because I’m the lawyer who lost the “Clinton sock drawer” case.

I lost because Judge Jackson concluded the government’s hands were tied. Mr. Clinton took the tapes, and no one could do anything about it.

The same is true with Mr. Trump. Although he didn’t keep records in his sock drawer, he gathered newspapers, press clippings, letters, notes, cards, photographs, documents and other materials in cardboard boxes. Then Mr. Trump, like Mr. Clinton, took those boxes with him when he left office. As of noon on Jan. 20, 2021, whatever remained at the White House was presidential records. Whatever was taken by Mr. Trump wasn’t. That was the position of the Justice Department in 2010 and the ruling by Judge Jackson in 2012.

A decade later, the government should never have gone searching for potential presidential records. Nor should it have forcibly taken records from Mr. Trump. The government should lose U.S. v. Trump. If the courts decide otherwise, I want those Clinton tapes.

More here, if you can get behind the paywall.

Another way of looking at it is that the Presidential Records Act is not a criminal statute and has no criminal penalties connected with it. That’s why Trump wasn’t charged under it. No former president has ever been charged with crimes based on violations of this act, although many presidents have been known to violate it. This convention was (of course!) ended for President Trump, labeled by the left as uniquely nefarious.

Law is a funny thing, and I don’t mean funny ha-ha (although sometimes it is that as well). Its fair application rests on the good faith and objectivity of those implementing it. It was always somewhat flawed in application and probably always will be due to human nature and the impossibility of drafting “perfect” laws. But these days I see it as a great deal more flawed and even more partisan than it was back when I was in law school.

Comments

Clinton’s drawer and Trump’s boxes — 36 Comments

  1. Good faith is long gone from US politics. Eisenhower was probably the last honest president. Harry Truman was, too, although he and Eisenhower were worlds apart on policy. Kennedy knew that his election was flawed by Mayor Daley and Johnson. Johnson was so corrupt that when Nixon tried to clean house, the FBI took him down in a coup. Jimmy Carter was probably honest but he was a naif and the Democrat Congress ran the country. Reagan was probably honest but he was forced to some dishonest maneuvers by communist politicians like Chris Dodd whose father was also a crook. After Reagan, it is a sad tale.

  3. Over-reading rhetoric lacking literal meaning is something Leftists do to their designated enemies in their sleep. Currently, just today, the UKs Trigernometry comic guys have an interview up with Andrew Sullivan (they are touring the States, apparently).

    And this histrionic and tortured thinking is the centrepiece in this interview, and in the posted YT comments, this annoyance and rejection of the messenger is on fulsome, florid display. https://www.youtube.com/watch?v=NGeAXhnQ81I

    The great indoor sport of Leaping to Conclusions is thus focused by the forced misreading Trump rhetoric.

  4. After a certain point, the population yearns for a Man on A White Horse, whatever his possible failings.
    It’s not a good thing to push the population to that point.

    However, even given Trump’s actual or bogus failings, is there anybody else who can and would tear apart the Deep State? What of his failings are more important than that?

    Some must be asking. Because if the choice is Trump’s actual or bogus failings versus the continued growth of the Deep State, which side looks better for the future?

  7. I remember Paul Mirengoff hyperventilating that some comment Trump made about some case had fatally compromised any future prosecution. Under the circumstances, how can the entire DOJ and the rest of the federal government not be forced to recuse themselves?

    I have wondered if any judge would actually have the courage to cite the illegal spying, the dossier, the FISA crimes, the blatant bias, the coordinated lies, Crossfire Hurricane and all the rest and simply declare that it is IMPOSSIBLE for the DOJ to meet the ethical standards required of prosecutors.

    Or even declare that the rampant lies, slanders and crimes of the government in conjunction with the dishonest news media have so thoroughly infected the jury pool that a fair trial is impossible anywhere in the country.

    I’m beginning to think this would be the best possible outcome. A judicial determination that tells the world that the case is exactly the dishonest garbage that it is. And that such garbage will not be tolerated in America.

  8. There is an anlysis to be done. What is a “presidential record?” What is a “personal record?” What is an “agency record?” How does that apply to the materials that Trump took and refused to return? The only commentators I’ve seen who are even doing that analysis are Ed Whelan and Andy McCarthy. Bekesha’s op-ed doesn’t really even try.

    Here’s Whelan:

    https://twitter.com/EdWhelanEPPC/status/1668938375120797697

    Frankly, Bekasha’s analysis leads to an absurd result. What if a president decided that the nation’s nuclear launch codes were “personal records” under the PRA and decided to take those with him or her after leaving office? Under Bekasha’s analysis, there is nothing that the new president could do to recover the launch codes because once the outgoing president decided that those launch codes were personal records, that is final. Whelan and McCarthy’s analysis actually works in this hypothetical because the launch codes would be agency records that aren’t even subject to the PRA.

    The saddest thing about this whole episode is that, although Trump didn’t take nuclear launch codes, what he is alleged to have taken is really not that much less sensitive. Battle plans for an invasion of Iran? Intelligence assessments of the capabilities of the United States and potential adversaries? Put the shoe on the other foot. Do you really want a former president to be in a position to undermine the current president by leaking that sort of information to the press? Is that really the legal framework that the authors of the PRA created?

  9. Another point – I suppose Whelan and McCarthy are what neo refers to as “Trump haters.” Probably Barr too, who has repeatedly opined that Trump placed himself in jeopardy because of the way he’s handled these retained documents.

    Bluntly, that’s nuts. Legal experts on the right, like Barr and McCarthy, defend Trump when, in their judgement, the law is on his side and criticize him when, in their judgement, the law is not on his side. Barr put his career and reputation on the line to defend Trump in Russiagate. McCarthy defended Trump in Russiagate as well. I don’t know about Barr, but McCarthy has also defended Trump in depth with regard to the Bragg indictment.

    It is not wise to ignore people who have defended you in the past because they disagree with you now. Barr, McCarthy, and the like didn’t suddently become “Trump haters.” Consider the possibility that Barr and McCarthy aren’t defending Trump on the document matter because Trump is actually in the wrong on this one. Just becuse Trump is on the “deep state” hit list doesn’t mean that everything he does is right, or even legal.

    A final practical point – writing-off people like McCarthy, Whelan, and Barr as “Trump-haters” is subtraction. In a Democracy, winning elections is a necessary component for any successful movement. As more and more former conservatives and former Republicans are written out of the Trump/MAGA movement, how are you going to win anything? (And if your answer is “Republicans can’t win anyway because the system is rigged” then what, exactly, is the reason for the MAGA movement to begin with?)

  10. “…recuse themselves?”
    I suspect that recusal is something that Democrats simply do not do.
    Why recuse yourself if you’re always right? (By definition.)
    And virtuous.
    No, not for Democrats, not at all.
    OTOH, recusal is indeed something that Democrats can demand that Republicans MUST do…since Republicans are NEVER right, by definition; and never virtuous…
    (Please somebody, tell me I’m wrong, here…with examples(!)—I do realize that, on occasion, some Republicans, e.g., Cheney, Kinzinger, DO recuse themselves…from SANITY, from REALITY…)

  11. It is rather touching that, when it comes to legal matters, one believes the charges, allegations, intimations, innuendo and accusations of unabashed crooks and criminals who themselves, whole-heartedly, consistently, rigorously and—best of all—RIGHTEOUSLY! flout the law…i.e., when they’re not ignoring it, changing it, perverting it or subverting it to suit their no-doubt VIRTUOUS purposes and goals.

    Perhaps even more touching is to note how carefully and scrupulously Democrats have been studying history, poring over it in all its fascinating detail—and throughout its various epochs, regions and cultures—so that they might discern its “natural arc”, draw the necessary conclusions—for them, that is—and then ACT on them…
    (All this while, needless to say, discarding—or disregarding—anything “unhelpful” to their perceived cause…)
    https://twitter.com/costofglory/status/1668985889521909760
    H/T Lee Smith Twitter feed.

  14. If the president can unilaterally Drclassify pretty much any product in and from the Executive branch, the presumed sensitivity is irrelevant.
    I believe the nuke codes are changed when the administration changes. Anybody know about this?
    There’s some confusion in the media about whether the indictment specifies the records act, or espionage law.

    See Clinton, Loral, China, and nuke sub tech.

  15. “…nuke codes…”
    Currently in the hands of…gosh, could it be Dr. J? (And might that be preferable…?)
    – – – – – – – – – – –
    Meanwhile, rehashing a wee bit of skepticism here…WRT “Biden” shenanigans…
    “Trump Indictment Rests On Untested Legal Theory, Experts Say”—
    https://www.zerohedge.com/political/trump-indictment-rests-untested-legal-theory-experts-say
    I suppose “he” could always try to dust off the Logan Act while “he”‘s at it…
    …just to make the farce all that much MORE convincing…

  16. When I was on the space program, the encryption keys changed daily and the old keying materials were destroyed every couple of days. One type was burned and one type was destroyed in a blender mixed with alcohol. I doubt launch codes are less secure.

  17. Because Democrats are there to SAVE OUR DEMOCRACY.
    (Oh, and because “We have one set of laws in this country, and they apply to everyone…”!)
    Can there be any doubt…?
    Dershowitz:
    “Why Donald Trump Cannot Get a Top-Tier Lawyer”—
    https://www.gatestoneinstitute.org/19725/donald-trump-lawyer
    Opening grafs:
    “There are disturbing suggestions that among the reasons lawyers are declining the case is because they fear legal and career reprisals.
    “There is a nefarious group that calls itself The 65 Project that has as its goal to intimidate lawyers into not representing Trump or anyone associated with him. They have threatened to file bar charges against any such lawyers.
    “I wrote an op-ed offering to defend pro bono any lawyers that The 65 Project goes after. So The 65 Project immediately went after me, and contrived a charge based on a case in which I was a constitutional consultant, but designed to send a message to potential Trump lawyers: If you defend Trump or anyone associated with him, we will target you and find something to charge you with. The lawyers to whom I spoke are fully aware of this threat — and they are taking it seriously…. It may even be worse today….”

    Charming, ain’t it!

  18. BTW, remember all those Trump lawyers that the FBI allowed to accompany them on their paper chase throughout MAL?
    (Just to make sure that nothing “improper” would take place during the “search”…not that there’s anything improper when it comes to knee-capping DJT…but still…)

  19. Richard Aubrey – There is no confusion about the indictment. It is under what is called the Espionage Act, but under the sections of that act relating to the mishandling of classified information.

    If the nuke codes hypo doesn’t work for you, think of another document or piece of information that a current president might need. Under the Judicial Watch/Bekesha theory, the current president has no means to recover that document or piece of information because it becomes the former president’s personal property, and the former president can do what he/she pleases with it as long as they say they thought about declassifying it before leaving office.

    Don’t fall for the Harry Reid trap. If a precedent is created, it will be used against a Republican.

  21. Interesting commentary on the Trump document saga here:

    https://hotair.com/david-strom/2023/06/15/wapo-trump-chose-not-to-avoid-indictment-and-chose-to-fight-n558160

    Apparently, it was John Eastman 2.0. Trump’s lawyers reportedly advised him repeatedly to return the documents and negotiate with the DOJ. But lawyers from Judicial Watch, i.e., Bekesha’s organization, were a bug in Trump’s ear giving him the same theory that Bekesha laid out in the WSJ yesterday.

    Just as Trump followed John Eastman and Rudy Guiliani down the January 6th rathole, he apparently followed the Judicial Watch pied piper all the way to an indictment.

    Once is an accident. Twice is a pattern. Is there any crackpot legal theory that Trump will not accept? Is a man who accepts any whack-a-doodle legal theory that advances his own short term interest really disciplined enough to “take down” the deep state?

    No. Even if, by some miracle, Trump does manage to be elected president again, the deep state will eat him alive, just like it did last time.

    “But he fights!” — Yes, he fights stupidly and over the wrong things.

  22. That WaPo/Hot Air commentary would also provide a pretty good explanation for why Trump can’t seem to find a lawyer to represent him. What lawyer would want to represent a client who is going to reject his or her advice and follow whatever outside legal outfit tells him what he wants to hear?

  23. …Because the Democrats are SO respectful of the law, I guess…
    …as the egregious Andrew Weissmann gets his backside handed to him in the following exchange…(ON MSNBC!!)
    https://www.mediaite.com/politics/ex-trump-attorney-claims-on-msnbc-he-witnessed-45-instances-of-doj-misconduct-i-know-it-sounds-like-i-made-that-number-up/
    …from:
    https://twitter.com/mirandadevine/status/1669181617946914816?cxt=HHwWgMCztc_1j6ouAAAA
    H/T Hans Mahncke Twitter feed.
    Key phrase:
    “…[consistent]…prosecutorial misconduct…”

  24. So what is your point Barry Meislin? You’re citing instances of corruption by the left. Yeah. I agree with you. The left is awful.

    You’re basically arguing that the right should pull a Thelma and Louise.

    If not, show me a path to fixing this or making the problem better by sticking with Trump. Sticking with Trump almost certainly ends in a resounding defeat in 2024. If, by some miracle, Trump manages to win the White House again, it will end the same way it did last time, with Trump check-mated by the same deep state that he has repeatedly demonstrated that he doesn’t understand and lacks the discipline to successfully counter.

    So off the cliff we go.

  25. It would certainly be “nice” if everyone agreed with you(!)
    (OTOH, if everyone agreed with ME, I’d begin to worry…)
    In any event, Andrew McCarthy(!) has an answer (THE answer??):
    “A proud defense of whataboutism — comparing Trump to other cases is the practice of law”—
    https://nypost.com/2023/06/14/a-proud-defense-of-whataboutism-comparing-trump-to-other-cases-is-the-practice-of-law/

    Sorry, where was I?
    Oh yes: relying on unrepentant gangsters for moral and, especially, LEGAL clarity seems to be rather iffy (as in, “dubious”).
    Actually, make that, perilous.
    ACTUALLY, make that, STUPID.

  26. BTW, one might be of the opinion that we’re going “off the cliff” even as we “speak”—under the current “POTUS”—or, ESPECIALLY under the current “POTUS”.
    (But then one might equally be of the opinion that we’re going “off the cliff” no matter who will be the GOP candidate in November 2024.)

    I must say, though, that one really should admire your optimism…

  28. Frankly, Bekasha’s analysis leads to an absurd result.

    I didn’t read it as “analysis.” I read it as an indictment of the politicization of the law: that when a Democrat does it, shrug, what can we do? Whereas when a Republican does it, he should be locked up and the key melted down.

    With a (sometimes) quiet subtext of, “Yes, we know we’re being inconsistent, maybe even hypocritical, but we’re doing it for the Good of the Country and To Save Democracy! You know, like how Capone was finally nailed on tax evasion?”

    I’ve been cooling on Trump ever since he entered the race this time, having voting for him twice, grudgingly in 2016 as the R candidate and enthusiastically in 2020 as the guy who presided over a booming economy that was helping the lower two to three quintiles as much as or more than the top two and who made real inroads into reducing the weight of federal regulations and the size of the federal government. Now, I want him to step away and let younger conservatives for whom his example – of fighting – seems to have been inspirational take over. But that this prosecution ought to be spelled “persecution” appears glaringly obvious to me, and the fact that it’s Trump, however hated or derided he may be, being persecuted doesn’t erase our responsibility to hold it up to the light.

  29. In my view, the Democrats are herding us ALL “off the cliff” in order to kill the American Republic and its Constitution.
    And the GOP wimps in the House cannot even kick lying Schiff out.

    Jamie: Agree. Well said.

  30. Jamie – You may be correct that Bekasha’s analysis is more of a protest than a serious legal position, but it looks as though Bekasha and his boss at Judicial Watch convinced Trump to bet his freedom and much more on that position – against the advice of his attorneys.

    So Trump goes down in a blaze of glory to demonstrate the corruption of the left? Then what? Well, aside from Trump going to jail and Biden going back to the White House.

    (Does Trump realize what he has signed up for?)

  31. they do seem to think that abuse of the so called intelligence community, is right and proper,

  33. Bauxite on June 15, 2023 at 8:35 am said:
    Richard Aubrey – There is no confusion about the indictment. It is under what is called the Espionage Act, but under the sections of that act relating to the mishandling of classified information.

    Then it is null and void since Trump had full power to declass.

  34. Bauxite on June 15, 2023 at 9:06 am said:
    So what is your point Barry Meislin? You’re citing instances of corruption by the left. Yeah. I agree with you. The left is awful.

    You’re basically arguing that the right should pull a Thelma and Louise.

    If not, show me a path to fixing this or making the problem better by sticking with Trump. Sticking with Trump almost certainly ends in a resounding defeat in 2024. If, by some miracle, Trump manages to win the White House again, it will end the same way it did last time, with Trump check-mated by the same deep state that he has repeatedly demonstrated that he doesn’t understand and lacks the discipline to successfully counter.

    So off the cliff we go.

    I don’t think there is any path to fixing this by voting.

  35. In my view, the Democrats are herding us ALL “off the cliff” in order to kill the American Republic and its Constitution. And the GOP wimps in the House cannot even kick lying Schiff out.
    ==
    It would take a concurrence of 2/3 to expel him.

Leave a Reply

Your email address will not be published. Required fields are marked *

HTML tags allowed in your comment: <a href="" title=""> <abbr title=""> <acronym title=""> <b> <blockquote cite=""> <cite> <code> <del datetime=""> <em> <i> <q cite=""> <s> <strike> <strong>

↑