Analysis | Trump's attorneys claim he could say government documents were his own – The Washington Post
For all of the attention that the Presidential Records Act (PRA) has received over the past two years, its delineations are uncomplicated.
Material that is presented to a president (including “all books, correspondence, memorandums, documents, papers, pamphlets, works of art, models, pictures, photographs, plats, maps, films, and motion pictures,” digital or physical — or pretty much anything) falls into one of two categories.
Category one is “personal records.” Those are materials 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.” A president’s diary, for example, or things related to his campaigns.
Category two is “presidential records,” which can be summarized more succinctly: nearly everything else. There are some other exceptions mentioned in the PRA, like “official records of an agency” (since those are records of the agencies) or “extra copies of documents produced only for convenience of reference.”
What the PRA does not delineate is a way in which items from the latter category can be transformed into elements from the former. This isn’t like classification; the president can’t, under the terms of the law, simply say, “This is personal now.” Yet, in a court filing submitted in response to Donald Trump’s federal indictment in Florida, that’s exactly what his attorneys appear to be arguing.
The argument comes in a part of the filing titled, “There Can Be No ‘Unauthorized’ Possession Of Records That A President Designates As ‘Personal’ Under The PRA.”
This is a reference to the first 32 counts of the Florida indictment, centered on Trump’s retention of materials at his Mar-a-Lago estate. Trump, the indictment charges, “having unauthorized possession of, access to, and control over documents relating to the national defense, did willfully retain the documents and fail to deliver them to the officer and employee of the United States entitled to receive them” — that is, the National Archives and Records Administration, which had demanded them. The indictment then lists 32 documents that Trump allegedly didn’t return, most of which were classified.
Trump’s attorneys respond that documents like number 25, “TOP SECRET//HCS-P/SV/ORCON-USGOV/NOFORN: Document dated October 24, 2019, concerning military activity of foreign countries and the United States,” had been declared “personal” by the then-president.
“[T]he PRA authorized President Trump to maintain possession of records that he used [under] Article II authority, as President, to designate as ‘personal,’” the filing asserts. It later explains vaguely how this purportedly worked: “President Trump designated the records as personal under the PRA while he was still in Office, not as a ‘former president.’”
Again, there is no such designating authority included in the PRA. In fact, as historian Kevin Kruse noted last year, the law was passed in the years following Watergate specifically to limit a president’s ability to keep records of his administration out of the public eye. Kruse also pointed to the National Archives’ explanation of the PRA; it notes that “[t]he President does not have discretion to categorize a Presidential record as a personal record.”
What Trump’s attorneys are leaning on is a section of the PRA that explains how the differentiation between “presidential” and “personal” is made by an administration.
“Documentary materials produced or received by the President, the President’s staff, or units or individuals in the Executive Office of the President the function of which is to advise or assist the President,” it reads, “shall, to the extent practicable, be categorized as Presidential records or personal records upon their creation or receipt and be filed separately.”
The attorneys frame this not as a practical means of determining category at the outset but, instead, as a subjective means of classification. “PRA conferred discretion on the President to designate those records as personal,” the filing reads. This is like saying that a casino’s rule that cards should be separated into black or red piles after use means that a blackjack dealer is allowed to decide what constitutes “red.”
Trump’s attorneys try to leverage the “extra copies of documents” exception included in the PRA, arguing that “[s]urely no one from, for example, the National Security Council or the Intelligence Community left individual original documents in the Oval Office following briefing to President Trump and failed to retrieve the documents before the end of President Trump’s first term.” There is reporting, though, that Trump at times asked to keep documents that had been presented to him during briefings.
What’s more, that exception carves those copies out of the “presidential records” category. The PRA does not put them into the “personal records” category — a category that again centers on material “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.” Instead, these are not considered presidential records simply because they are extraneous and therefore don’t necessarily need to be retained.
In fact, the Archives addressed this, too.
“[M]ultiple copies, to include photocopies, of the same document can all be Presidential records, depending on how they are used and maintained in the White House,” it explained. If a president wants to “dispose of Presidential records that they determine ‘no longer have administrative, historical, informational, or evidentiary value,’” the explanation continues, that must happen while the president is in office and the White House “must first obtain the views of the Archivist of the U.S. in writing.”
The argument presented by Trump’s attorneys echoes their broader defense of his actions: that he had broad immunity given his position. The Supreme Court will consider this argument next month, but the philosophy permeates Trump’s rhetorical and legal rebuttals to his indictments: He was allowed to do what he want and he cannot be held accountable for doing those things.
The PRA example shows how tenuous that argument is.
The latest: Federal prosecutors have asked a judge to push back Donald Trump’s classified documents trial in Florida to July 8, probably after the Supreme Court rules on his claim of presidential immunity, while Trump’s lawyers are trying again to delay the trial until after the presidential election.
The case: The criminal investigation looks into whether Trump took government secrets with him after he left the White House and obstructed a subsequent investigation. Trump has pleaded not guilty. Here’s what to know about the classified documents case.
The charges: Trump faces 40 separate charges in the documents case. Read the full text of the superseding indictment against Trump and our top takeaways from the indictment.
Can Trump still run for president? While it has never been attempted by a candidate from a major party before, Trump is allowed to run for president while under indictment in four cases — or even if he is convicted of a crime. Here’s how Trump’s indictment could affect the election.