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Former President Donald Trump has repeatedly invoked a case involving former President Bill Clinton’s personal records as he faces federal charges for his alleged mishandling of classified documents.
The prior case involved audio recordings of interviews between Clinton and historian Taylor Branch that Clinton reportedly kept in his sock drawer during his presidency. In 2012, Judicial Watch, a conservative activist group, sued the National Archives and Records Administration, demanding it force Clinton to turn over the recordings. However, the judge ruled the administration didn’t have the authority to obtain them and the case was dismissed.
Trump has cited the case while defending himself in posts on Truth Social and in court documents, and he also mentioned it in a speech he gave at his New Jersey golf club just hours after he was arraigned.
“Under the Presidential Records Act − which is civil, not criminal − I had every right to have these documents,” Trump said. “The crucial legal precedent is laid out in the most important case ever on this subject, known as the Clinton socks case.”
On June 8, a federal grand jury indicted Trump on 37 counts for allegedly storing classified documents at his Mar-a-Lago estate in Florida after he left the White House in 2021.
In a June 15 Truth Social post, Trump claimed the Presidential Records Act and Clinton’s case exonerate him from the charges he now faces.
Multiple Instagram and Facebook posts with similar claims, including from Judicial Watch, have generated hundreds of interactions from social media users.
But legal experts say Trump’s argument is flawed.
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The Presidential Records Act doesn’t allow presidents to take classified documents with them when they leave office. Legal experts say the tapes in Clinton’s possession are considered personal records, not classified presidential records like those Trump allegedly had at his Mar-a-Lago estate.
“While Trump’s supporters claim that this case applies here, it does not. … Trump is charged with crimes,” Joan Meyer, a partner at the law firm Thompson Hine, told USA TODAY in an email.
Legal experts say 2012 case not relevant to Trump’s classified documents probe
The 2012 case involving Clinton’s tapes isn’t relevant to Trump’s situation, said Marc Scholl, a former criminal prosecutor in New York.
Judicial Watch argued that the Clinton recordings should be labeled as presidential records under the Presidential Records Act and that NARA should assume “custody and control” over them.
However, U.S. District Court Judge Amy Berman Jackson dismissed the case, noting the agency didn’t have the ability to designate materials as “presidential records,” didn’t have the tapes in question and lacked any mechanism to obtain them.
She also wrote that the tapes were personal records created by Clinton under the Presidential Records Act and that the act did not assign the archivist any role with personal records once a presidency concluded. The act distinguishes between personal records, which don’t have an effect on the “constitutional, statutory, or other official or ceremonial duties of the president,” and presidential records, which do relate to the duties of a president and other government business, according to NARA, the national archives agency.
David Super, a constitutional law expert at Georgetown University, said there are stark differences between the Clinton case and Trump’s situation.
“The documents there − tapes of a conversation Mr. Clinton had with a historian − did not arise from Clinton’s performing any constitutional, statutory or other responsibilities as president and were not created by any other federal officials, even in part,” Super said. “This is a sharp contrast to the documents Mr. Trump is accused of withholding.”
The Clinton case also had nothing to do with information that could be potentially harmful to national security, which meant the Espionage Act wasn’t invoked. It also did not involve lying to federal agencies, disobeying subpoenas or asking other people to lie to or mislead law enforcement, Super said.
Trump is accused of all those things.
“What Trump has done is take dicta from the (Clinton case) ruling regarding the authority of a former president to make record designation decisions and conflated that into a claim that the statute permits him to take whatever he wants and hold onto those records irrespective of other laws, such as the Espionage Act,” said Bradley Moss, a national security lawyer.
USA TODAY reached out to Trump’s campaign and Judicial Watch but did not immediately receive a response.
Trump distorts Presidential Records Act in his defense
In putting forth this defense of his actions, Trump has “completely misread” the Presidential Records Act, Moss said.
Congress passed the act in 1978 after former President Richard Nixon sought to destroy White House tapes that implicated him in the Watergate scandal, as USA TODAY reported.
Jason Baron, former director of litigation at NARA, told USA TODAY that presidents can keep personal records after they leave office. However, those personal records must be separated from presidential records before they leave, according to NARA.
The act doesn’t allow a president to designate classified or official records as personal before taking them, Baron said.
And nothing about the Presidential Records Act grants a former president authority to personally possess presidential records, Moss said.
“The Presidential Records Act specifically assigns ownership, responsibility and authority to NARA through the archivist,” Moss said in an email. “NARA is responsible for storing, sorting through and archiving presidential records for future historical use, whether in a presidential foundation or at a NARA facility. (The presidential records) are records of the United States Government, not of the former president.”
The indictment against Trump doesn’t mention the Presidential Records Act. Rather, it says he was charged – among other things – with “willful retention of national defense information” under 18 U.S. Code § 793, a part of the Espionage Act, for his “unauthorized possession of, access to and control over documents related to the national defense.”
The classified documents he allegedly had “included information regarding defense and weapons capabilities of both the United States and foreign countries; United States nuclear programs; potential vulnerabilities of the United States and its allies to military attack; and plans for possible retaliation in response to a foreign attack,” according to the indictment.
Baron said no one could credibly argue classified records stored at Mar-a-Lago are “personal” in nature, or that the Presidential Records Act does not itself contain criminal penalties for violating its provisions
There is no exception to the Espionage Act for former presidents, including in the text of the Presidential Records Act, Moss said.
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