Does the Presidential Records Act provide a defense for Donald Trump and his 38-count indictment for mishandling national-security material? Trump himself has repeatedly asserted this for months, as have his campaign and his supporters. The argument declares that the president has plenary authority to determine the difference between “presidential” and “personal” records, and that the National Archives has no authority to contradict those decisions.

To bolster that argument, Trump and his supporters are relying on a decision handed down eleven years ago in a lawsuit brought by Judicial Watch. And it involves Bill Clinton’s sock drawer:

The reference to Clinton’s socks, which has cropped up not just in the former president’s Truth Social feed and at conservative news outlets but even in Trump court filings, stems from a 13-year-old case in which the right-leaning nonprofit Judicial Watch sought access to 79 audio tape recordings of Clinton interviews conducted by the historian Taylor Branch while Clinton was in office.

During his presidency, according to GQ magazine in a 2009 Q&A with Branch, Clinton “squirreled away the cassettes in his sock drawer.” But for Trump’s purposes, what matters is Clinton’s handling of the tapes after he left office: Clinton designated the recordings as personal records, not official presidential records, that were therefore not required to be turned over to the National Archives and Records Administration under the Presidential Records Act.

Judicial Watch sued over that designation, arguing that the tapes captured classified information including Clinton conversations with foreign leaders.

But in a 2012 opinion, the trial judge overseeing Judicial Watch’s lawsuit ruled that even if the tapes should have been designated to be presidential records, she could not order the National Archives to recategorize them.

This case presents a couple of potential problem for Trump’s defense. First off, it’s a circuit court decision, which means it doesn’t set precedent. It also did not involve criminal charges, and the material fell into a gray area (tapes of Clinton and a journalist, with other recorded material reportedly included). It does, however, arguably present an issue for the prosecution if the court takes the opinion in Judicial Watch v NARA as precedential — on the issue of “personal” records, anyway.

Judge Amy Berman Jackson ruled against Judicial Watch mainly on the basis that the National Archives couldn’t and wouldn’t intervene to reclassify the tapes as “presidential records.” The PRA simply doesn’t have that kind of authority:

The only reference in the entire statute to the designation of records as personal versus Presidential also calls for the decision to be made by the executive, and to be made during, and *301 not after, the presidency. It provides: “materials produced or received by the President, [and other Executive Office employees], shall, to the extent practicable, be categorized as Presidential records or personal records upon their creation or receipt and be filed separately.” Id. § 2203(b). The PRA contains no provision obligating or even permitting the Archivist to assume control over records that the President “categorized” and “filed separately” as personal records. At the conclusion of the President’s term, the Archivist only “assume[s] responsibility for … the Presidential records.

Plaintiff contends that its factual allegations about the nature and substance of the audiotapes clearly establishes them to be Presidential records, regardless of how they were treated by President Clinton. Pl.’s Opp. at 12–13. The Court is not so sure. 9 But even if the Court were inclined to agree with plaintiff’s reassessment of President Clinton’s decision, it would not alter the conclusion that the injury cannot be redressed: 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. 44 U.S.C. § 2203(a)-(b). While the plaintiff casts this lawsuit as a challenge to a decision made by the National Archives, the PRA makes it clear that this is not a decision the Archivist can make, and in this particular case, it is not a decision the Archivist did make because President Clinton’s term ended in 2000, and the tapes were not provided to the Archives at that time. To the extent that there was a subsequent classification decision the Archivist purported to make, see supra note 2, or to be more accurate, a decision to decline to revisit the President’s classification decision, any injury plaintiff claims it suffered as a result would not be redressable because there is nothing under the statute that the Court can compel the Archivist to do.

This is why Trump and his defenders argue that JW v NARA establishes the plenary authority of a president to determine what is and what is not a “presidential record.” However, Jackson goes on to say that the problem in JW v NARA — and why Judicial Watch sued the National Archives and not Clinton — isn’t that the archivist didn’t have any enforcement options or that a president’s decision is final. It’s that NARA refused to use their authority to demand that the tapes be given to the archives and use those law-enforcement options.

Jackson ruled that a court could not compel NARA to change its mind:

Even if the Court agreed with plaintiff that the PRA authorizes the Archivist to assume control of materials that fall within the definition of Presidential records regardless of how the President classified them, and it agreed with plaintiff’s questionable characterization of the materials, the Court still could not order the relief plaintiff seeks because the only enforcement tools provided to the defendant under the PRA are committed to the agency’s sole discretion. See 5 U.S.C. § 701(a)(2); Heckler v. Chaney, 470 U.S. 821, 831, 105 S.Ct. 1649, 84 L.Ed.2d 714 (1985) (holding that “an agency’s decision not to prosecute or enforce, whether though civil or criminal process, is a decision generally committed to an agency’s absolute discretion”).

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. Compare 44 U.S.C. § 2112(c) with 44 U.S.C. § 3106. The statute does not mandate that NARA invoke this enforcement scheme but rather vests complete discretion with the agency to utilize that mechanism. 44 U.S.C. § 2112(c) (“When the Archivist considers it to be in the public interest, he may ….” (emphasis added)). The Archivist has chosen to invoke the mechanism in the past when it deemed such action appropriate. See, e.g., United States v. McElvenny, No. 02–3027, 2003 WL 1741422 (S.D.N.Y. April 1, 2003) (seeking recovery of a map of Cuba annotated by President John F. Kennedy during the Cuban Missile Crisis).

Emphases mine. Do we see the difference here? NARA declined to pursue a classification challenge to the Clinton tapes, probably because they saw those as at least comparable to the reference to “diaries” in the PRA’s definition of “personal records.” Had they been tapes of Oval Office consultations with Clinton’s staff — as in the case of US v Nixon, the Watergate crisis that eventually produced the PRA — NARA would have had no choice but to act. And it’s still questionable as to why NARA didn’t take some action to have those tapes returned to do a more thorough review before reaching a conclusion.

However, in the event at hand, NARA did pursue Trump’s records, at first directly and then with the Attorney General and the Department of Justice. As Jackson ruled in JW v NARA, the PRA gives NARA the same authority to refer the matter to the Attorney General if records that belong to the United States were at risk as with the Federal Records Act. That equation dispenses with the argument that presidents have special authority that exceeds other parts of the executive branch when it comes to records handling.

Furthermore, while the president does get to go through his records and make determinations on what constitutes “personal records,” that designation has to at least align somewhat to statute. Congress passed the PRA in 1978 with the purpose of preventing presidents from claiming all records as personal by formalizing in statute the key issue decided in US v Nixon. The statute in 44 USC 2201 (signed by Jimmy Carter in 1978) defines “personal records” as:

(3)The term “personal records” means all documentary materials, or any reasonably segregable portion therof,[2] 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.

The purpose of the PRA was to set a statutory boundary on presidential power and privilege, not to further empower the presidency. It authorized the National Archives to refer such matters to the Attorney General for enforcement. Congress and the presidency formalized the precedent in US v Nixon into the PRA, and set clear definitions to prevent such constitutional crises in the future.  And for the most part, it has succeeded.

In this case, though, we may yet end up with another US v Nixon moment. When the DoJ seized the materials from Mar-a-Lago, it contained material clearly outside of the statutory definition of “personal records.” The indictment states that the material included “classified documents originated by, or implicating the equities of, multiple USIC [American intel community] members and other executive branch departments and agencies[.]” The indictment goes on to list several such sources of the material, including the CIA, Department of Defense, the NSA, and so on. Such work products are clearly “presidential records” under the statute in 44 USC 2201 (2):

(2)The term “Presidential records” means documentary materials, or any reasonably seg­regable portion thereof, created or received by the President, the President’s immediate staff, or a unit or individual of the Executive Office of the President whose function is to advise or assist the President, in the course of conducting activities which relate to or have an effect upon the carrying out of the constitutional, statutory, or other official or ceremonial duties of the President.

As such, those materials belong by statute to the United States. Even more clearly, those are the kinds of records that Congress clearly intended to prevent presidents from deep-sixing with the PRA.

Even with all that aside, Trump has other problems that the PRA wouldn’t touch anyway. He’s not being charged just for possession of these materials but also for mishandling them by exposing national-security information to unauthorized persons. That’s not just in terms of possession or storage — which are already highly problematic –but also in outright and purposeful exposure of such material in two instances, one of which is reportedly caught on tape.  Even if Trump had legitimate custodial authority, and even if the nat-sec material was unclassified, that exposure would violate 18 USC 793. (The recording cited in the indictment alleges Trump acknowledged at the time of exposure that the material was still classified, don’t forget.) Plus, the indictment also contains charges of obstruction of justice and conspiracy to obstruct based on false representations about the material and its storage, none of which the PRA addresses in any way.

And Trump and his team likely know that. If the PRA actually covered the situation, why would Trump and his legal team make false representations about the material in response to a subpoena? They would have told the DoJ to pound sand and made the PRA argument in court to rebut the subpoena.

Plenty of people want Trump to prevail in this matter, but it’s important to be realistic about the chances now that this is moving into a criminal trial process. The PRA defense is not at all likely to prevail, especially against the broad range of charges in this indictment. That’s not to argue that the investigation and indictment aren’t political, but the PRA defense is a political rather than legal argument too. I’d be surprised if Trump’s legal team even tries a defense in court on that basis, but if they do, they’d better have something better in place when it fails.

Update: We have a great discussion going in the comments. I’ll just add a couple of more thoughts here and another point. First off, as people have stated, the PRA is a civil statute, not a criminal statute — but Trump isn’t being charged with violating the PRA. He’s claiming that the PRA precludes charges under 18 USC 793 for illegally possessing national-security material, but that’s not true for the reasons I cite above. Furthermore, he’s not being charged for possession of those materials but for mishandling them, specifically by leaving them exposed in unauthorized areas of Mar-a-Lago such as bathrooms and a stage, plus two instances of revealing the documents to uncleared people. Don’t get fooled by the statute title “Espionage Act”: 18 USC 793 (e) relates to mishandling that results in the exposure of nat-sec information to the detriment of US security and/or the benefit of foreign nations, and nothing in 18 USC 793 requires that material to first be classified — although, as the indictment alleges, some of it was, and Trump allegedly admitted that he hadn’t declassified at least one of the materials he exposed.