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.