Trump Says Taking Presidential Records to Mar-a-Lago Automatically Made Them His Property
Following the Watergate scandal, Congress enacted two laws aimed at preserving presidential records. The Presidential Recordings and Materials Preservation Act of 1974 applied specifically to Richard Nixon, blocking the destruction of his White House tapes. Four years later came the Presidential Records Act (PRA), which applied to future administrations. Under that law, “the United States shall reserve and retain complete ownership, possession, and control of Presidential records,” which belong with the National Archives and Records Administration (NARA).
According to Donald Trump, that principle is essentially meaningless, because a president can arbitrarily classify any records as “personal” rather than “presidential.” In fact, the former president says, no explicit designation is necessary: When he took thousands of documents with him upon leaving the White House in January 2021, that very act transformed them into “personal” records that are not subject to the PRA.
Trump’s lawyers, who are wrangling with the Justice Department over the status and disposition of the records that the FBI seized from Mar-a-Lago in August, make that bold claim in a brief that was unsealed this week. U.S. District Judge Raymond Dearie, the special master charged with reviewing those documents, asked both sides to address several issues, including whether Trump “may designate or convert Presidential records to personal ones during or after his term in office.”
As Trump’s lawyers see it, the answer is obvious. “The Presidential Records Act authorizes a sitting President to designate records as personal records during his term in office,” they say. “A President determines whether a document constitutes a Presidential record or a personal record. In this instance, President Trump exercised that authority.”
How did he do that? “President Trump was still serving his term in office when the documents at issue were packed, transported, and delivered to his residence in Palm Beach, Florida,” the brief says. “Thus, when he made a designation decision, he was President of the United States; his decision to retain certain records as personal is entitled to deference, and the records in question are thus presumptively personal.”
According to Trump’s lawyers, that “designation decision” was implicit in the fact that he took the records. In a “privilege log” prepared for Dearie, they describe many of those records as “items generated during the presidency that can be possessed post-presidency and effectively deemed personal” (emphasis added).
By this reasoning, it is logically impossible that Trump violated the PRA by retaining the records. It is likewise impossible that he violated 18 USC 2071, one of the statutes that the FBI cited in its search warrant affidavit. That law makes it a felony, punishable by up to three years in prison, to “willfully and unlawfully” conceal, remove, or destroy a U.S. government document. If Trump is right that his removal of records made them personal, they presumably are not covered by that statute either.
The PRA defines presidential records as material “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 Presi
Article from Reason.com