.@realDonaldTrump doesn't understand the ‘socks’ case he thinks exonerates him: analysis https://t.co/8B6c7NoDec
— Raw Story (@RawStory) June 16, 2023
The part I've seen that MAGA likes to cite is about "the decision to segregate personal materials...is made by the President, during the President’s term and in his sole discretion." Lots they miss about the PRA itself, the actual facts of the case, etc, but this is why the sock drawer comes us.
My query to you, the lawyer (understanding you aren't necessarily an SME on this area of law): since this is a footnote in the Memorandum Opinion, does that mean it is dicta, and not binding, regardless?It’s a good question. I hope this ends up being a good answer.
In brief, for this topic there are three classifications of records: agency; Presidential; and a subset of Presidential, personal. Per the PRA, the President can distinguish personal from presidential (cited below. We’ll get to the weeds.). The reasons for this are kind of tedious to go into, but Presidents are people, too. And some of that rests on the definition of “Presidential records.” Those are the ones to be given to NARA.
First thing of note: Trump didn’t give the MAL docs to NARA. That’s a problem of its own. And these are “agency” documents; so, again, not subject to PRA. I mention this because the footnote is from a case involving NARA and the FOIA. The question was whether NARA could be forced to compel Clinton (stay with me here, I know what I’m doing) to turn over the tapes to Judicial Watch. Change the facts, change the outcome. Or the applicability of the opinion. That case has nothing whatsoever to do with Trump’s case. The opinion won’t come up in Florida. This is the kind of case non-lawyers find and think applies because, well: they’re non-lawyers.
IOW, no lawyer would cite this case in defense, or prosecution, of Trump’s MAL case. So the footnote has nothing to do with anything here. Which makes it kind of hard to address the question of the footnote and what it means, because in the Trump Espionage Act case, it has no meaning at all.
It’s like discussing elementary particles in the context of free will and the self.
What the footnote says is that distinguishing Presidential records from personal is up to the president. Which is valid law. What it does NOT say is that it’s up to the President to decide what is personal, and what is not, and he can decide that for anything that crosses his desk or is put in his hands. As I said, agency documents are not subject to the PRA. The PRA only concerns what it defines as Presidential documents. It doesn’t cover other governmental documents; what I’m calling here “agency documents.”
So the PRA, and a case deciding the application of the PRA (and actually, concerning judicial review of Presidential decisions under the PRA; see? Really doesn’t apply here.), have nothing to do with illegal retention of government classified documents and dissemination of same. Trump is being prosecuted under the Espionage Act. He’s not being prosecuted for violating the PRA (I think it would only be a civil case for that, one brought by NARA to challenge retention of Presidential records and probably seek judicial review of a decision to categorize records as personal. That’s a whole different kettle of fish.)
Let me drop this in here:
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. Such term--
(A) includes any documentary materials relating to the political activities of the President or members of the President’s staff, but only if such activities relate to or have a direct effect upon the carrying out of constitutional, statutory, or other official or ceremonial duties of the President; but
(B) does not include any documentary materials that are (i) official records of an agency (as defined in section 552(e) of title 5, United States Code; (ii) personal records; (iii) stocks of publications and stationery; or (iv) extra copies of documents produced only for convenience of reference, when such copies are clearly so identified.
(3) The term "personal records" means all documentary materials, or any reasonably segregable portion thereof, 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. Such term includes--
(A) diaries, journals, or other personal notes serving as the functional equivalent of a diary or journal which are not prepared or utilized for, or circulated or communicated in the course of, transacting Government business;
(B) materials relating to private political associations, and having no relation to or direct effect upon the carrying out of constitutional, statutory, or other official or ceremonial duties of the President; and
(C) materials relating exclusively to the President’s own election to the office of the Presidency; and materials directly relating to the election of a particular individual or individuals to Federal, State, or local office, which have no relation to or direct effect upon the carrying out of constitutional, statutory, or other official or ceremonial duties of the President.(B) is the relevant authority here. Trump took “official records of an agency.” Such records aren’t subject to the PRA. So the footnote doesn’t matter. That was a PRA case. This is not.
Awesome, thank you.
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