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(Photo by Drew Angerer/Getty Images)
We at ATL love a good joke as much as anyone. We had some belly laughs when it emerged that Donald Trump had been taking legal advice from Judicial Watch’s Tom Fitton, a non-lawyer who heads up a wingnut activist group founded by the OG vexatious litigant Larry Klayman to sue Democrats and stoke culture war.
Because that shit is funny. It is not, however, supposed to be the basis of the billionaire former president’s legal strategy. But nothing has been right in America for six years, so … here we are.
The latest round of briefings in the Mar-a-Lago documents dispute was unsealed today, and it put Fitton’s legal arguments front and center. To wit, Judicial Watch filed a FOIA request in 2019 to gain access to 79 hours of audiotapes historian Taylor Branch made of then-President Bill Clinton for his book entitled, “The Clinton Tapes: Wrestling History with the President.” When the Archives said Clinton had designated them as personal records and it didn’t have them, Judicial Watch filed suit to force the agency to designate the tapes as official presidential records and seize them.
US District Judge Amy Berman Jackson dismissed the case saying that, even if that’s how FOIA worked — and it isn’t — the court had no authority to force the Archives to designate any record as presidential. Moreover, the agency probably had no legal ability to seize the tapes anyway, even if it were inclined to designate them as presidential records. From this, Fitton inferred and apparently convinced Trump, that the president’s designation of a record as personal cannot be questioned in any forum, and so Trump should just tell the Archives and the DOJ to pound sand.
“No one but the president gets to pick what’s presidential records, no one but the president gets to pick what are personal records,” Fitton yelled on Twitter in August. “And the Archivist, which is being used as a cutout for the anti-Trumpers running our government here in DC, has no authority to second-guess him.”
Well, it’s patently ridiculous. By this logic, it would be perfectly legal for a president to designate the nation’s nuclear secrets as “personal” on his way out the door. And anyway, the Presidential Records Act (PRA) states very clearly that records created in the executive branch “shall, to the extent practicable, be categorized as Presidential records or personal records upon their creation or receipt and be filed separately.” So the argument that Trump could simply shout “I DECLARE PERSONAL” and redesignate vast troves of material as non-presidential years later as he headed for the exit is simply nonsensical.
But in the event, the former president’s lawyers aren’t even making that argument. They’re saying that, by the mere act of pocketing them and stuffing them in his pool locker, Donald Trump implicitly classified those documents as personal.
Rather, Plaintiff was authorized to—and did in fact—designate the seized materials as personal records while he served as President. 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. 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.
And they’re relying on Tom Fitton’s interpretation of the Judicial Watch case to support the contention that the “personal” designation by implication is un-reviewable by any court.
“The Judicial Watch decision provides an important model for the present case,” they argue, citing it as proof that “the PRA neither obligates nor permits the Archivist to make initial designation decisions or to take control of records that the President has designated as personal records.”
Indeed, Trump’s lawyers have consistently sought to portray this as some kind of PRA enforcement action, claiming that the government’s only option to get the documents back was to file a civil suit. Which makes perfect sense if you ignore the fact that a federal magistrate judge found probable cause to believe that Trump violated the Espionage Act, obstructed justice, and improperly handled government documents and authorized the FBI to go seize all government documents being stored at the former president’s private club. Put simply, this is not, and never has been, a case about the PRA.
Nevertheless, as the privilege log the parties submitted over the weekend illustrates, Trump is asserting his right to transubstantiate dozens of presidential records into personal documents simply by the act of taking them out of the White House. And he’s doing it expressly citing the Judicial Watch precedent.
The government writes:
In several hundred instances, Plaintiff has asserted that records are “personal” with the following explanation:
Basis: Cover/folders/envelopes/personal messages/misc. personal: consistent with the PRA and Judicial Watch v. NARA, these are items generated during the presidency that can be possessed post-presidency and effectively deemed “personal.”
And if Trump fails to persuade the court that these documents became personal through the act of purloining them, the he argues in the alternative that they are executive privileged and cannot be disclosed to the Justice Department, even though it is a part of the executive branch.
“The Special Master should not indulge this type of gamesmanship,” the government scoffs in response. Indeed, the government’s brief to Special Master Judge Raymond Dearie submitted today is particularly indignant about the former president’s legal arguments.
The government notes that there is only one document for which attorney-client privilege is disputed — despite Judge Aileen Cannon’s hyperventilation about the government filter team being untrustworthy, thus necessitating a special master review — and 121 for which Trump is making a threshold claim of executive privilege, rather than a secondary one in case the court refuses to allow him to transmogrify presidential records into personal ones via theft.
Instead, Trump has moved the goal posts to pretend that criminal suspects are routinely entitled to the pre-indictment return of all personal property, even that which, as here, was seized pursuant to a duly authorized warrant. And that is not a thing.
In lieu of making viable privilege claims, Plaintiff now asserts that the overwhelming majority of documents—more than 97% of the total seized—qualify as his “personal” records under the PRA. Even if correct (which it is not), that characterization amounts to a red herring in this proceeding. Documents commingled or collectively stored with the classified materials located at Plaintiff’s premises were lawfully seized by the FBI in accordance with the terms of the court-authorized search warrant because of their relevance to the government’s ongoing investigation. That relevance exists irrespective of whether they were personal papers or government records. In the absence of a valid and substantiated claim of privilege, all such documents must now be made available to the investigative team
Prosecutors point out that this is not a PRA case brought by the Archives, but is in fact a Justice Department investigation of real crimes for which people routinely go to jail:
The FBI’s court-authorized search of Plaintiff’s premises was not undertaken on behalf of the National Archives to ensure compliance with the PRA. It was undertaken in connection with an ongoing national security and criminal investigation into potential violations of federal criminal statutes prohibiting, inter alia, the unlawful retention of national defense information, obstruction of justice, and the willful removal of government records. Nothing in the PRA preempts the application of those criminal laws
And as for the legal advice Donald Trump got from Tom Fitton and persuaded his supposedly “normal” lawyers to argue in court, well …
Plaintiff asserts that a law enacted by Congress in the wake of Watergate to preserve the public’s access to Presidential records actually allows a President to (1) pack up and remove boxes full of Presidential records at the end of his term in office; and (2) convert those Presidential records into “personal” records through that simple act of removal. To state Plaintiff’s position is to refute it
Yes, we all feel like we’re taking crazy pills reading a legal document which argues that the act of stealing a document implicitly declassifies it. And Judge Dearie has shown no indication that he’s sympathetic to the plaintiff’s reasoning. But Judge Cannon is going to get the last word at the trial court level, and, going by her prior decisions, she’s keeping several bottles of crazy pills in her chambers. So it’s anyone’s guess what she’ll do with Judge Dearie’s decisions here.
And lest we forget, the Eleventh Circuit is considering an expedited appeal of Judge Cannon’s special master order which may moot this whole process. But it will not expunge these briefs from our memory — because, not to put too fine a point on it, but this stuff is fuckbonkers insane.
Trump v. United States [Docket via Court Listener]
Liz Dye lives in Baltimore where she writes about law and politics.
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