https://www.archives.gov/presidential-libraries/laws/1978-act.html
http://www.gpo.gov/fdsys/pkg/FR-2009-01-26/pdf/E9-1712.pdf
There's so much to learn about how our government works. Reading heated debates about Trump's possession of government documents at Mar a Lago, whether classified or not, I have visited the official source to see what our US Government says the laws are.
For anyone who's interested, this Presidential Records Act (PRA) of 1978 is worth reading. I'll highlight a few specifics, from this official link and also Executive Order 13489 -- Presidential Records (2009) that it references.
It's a longish read, but I think valuable in understanding the dynamics of this presidential records issue.
GOVERNMENT RECORDS ARE PUBLIC-OWNED
The PRA... Establishes public ownership of all Presidential records and defines the term Presidential records.
The PRA... Requires that Vice-Presidential records be treated in the same way as Presidential records.
It seems clear that the bulk of what has been recovered from MAL belongs to us, the American public, and not Mr. Trump.
AUTHORITY RESTS WITH THE INCUMBENT PRESIDENT
The PRA "Places the responsibility for the custody and management of incumbent Presidential records with the President."
The issue here is, what does incumbent president mean? The dictionary definition says it is the sitting president. So then, what are the rights of former versus sitting presidents? What rights does a former presient have to documents created during their prior incumbency?
In a VOA News essay, author Masood Farivar quotes Gary Schmitt, a senior fellow at the American Enterprise Institute:
"A former president certainly can try to make a claim of executive privilege, but it's still the case that the sitting president has the constitutional authorities and also the constitutional responsibilities to judge whether that claim is appropriate or not."
It makes sense that the sitting president must be nation's the highest authority on all constituional and national security matters. In a functioning democracy, Trump should be an asset who Biden can rely on for experienced opinion, not an adversary or potential enemy of the state.
THE NATIONAL ARCHIVES ULTIMATELY GREEN-LIGHTS DOCUMENT DISPOSAL
The PRA... Allows the incumbent President to dispose of records that no longer have administrative, historical, informational, or evidentiary value, once the views of the Archivist of the United States on the proposed disposal have been obtained in writing.
Trump has reportedly torn, shredded, flushed and stolen government documents. His defense team is trying to establish his legal right to do so. Yet this PRA clearly cites an audit-able written process for doing so. Trump must not destroy government documents without NARA's written approval.
The wording of this clause is tricky. If the views of the Archivist differ from the views of Trump, can he unilaterally claim privilege or destroy documents regardless?
It's important to remember that the Presidential Records Act (PRA) of 1978 was created in response to Nixon's attempts to withhold and destroy documents that would prove his criminal role in the Watergate conspiracy. Trump's lawyers may argue historical precedent pre-1978. The courts must decide whether or how the PRA is enforceable in Trump's case.
PRESIDENTIAL RECORDS AUTOMATICALLY TRANSFER TO NARA
The PRA… Establishes that Presidential records automatically transfer into the legal custody of the Archivist as soon as the President leaves office.
Upon leaving office, Trump has no custodial rights to presidential records. He should not have packed, moved, hid nor obstructed NARA's legal efforts to retrieve all the records, whether classified or not.
Trump's lawyers may argue that the DOJ warrant was unnecessary over-reach, but evidence shows several legally valid, escalating steps spanning 18 months that Trump ignored. His actions culminated in the need for a thoughtfully reasoned and executed search warrant.
ACCESS TO RECORDS FURTHER CLARIFIED IN 2009
The PRA… Establishes procedures for Congress, courts, and subsequent Administrations to obtain 'special access' to records from NARA that remain closed to the public, following a privilege review period by the former and incumbent Presidents; the procedures governing such special access requests continue to be governed by the relevant provisions of E.O. 13489.
This PRA clause cites president Obama’s 2009 Executive Order 13489 that clarifies the rights of a former and incumbent president regarding executive privilege claims:
Upon receipt of a notice of intent to disclose Presidential records, the Attorney General (directly or through the Assistant Attorney General for the Office of Legal Counsel) and the Counsel to the President shall review as they deem appropriate the records covered by the notice and consult with each other, the Archivist, and such other executive agencies as they deem appropriate concerning whether invocation of executive privilege is justified…
If either the Attorney General or the Counsel to the President believes that the circumstances justify invocation of executive privilege, the issue shall be presented to the President by the Counsel to the President and the Attorney General.
In all cases, the incumbent US Attorney General and incumbent President's Counsel arbitrate the request in partnership with the Archivist and others they deem necessary. Then once agreement is reached, the President's Counsel present’s this to the incumbent President.
This is how checks and balances are enforced. In Trump's case, he has no legal right to unilaterally claiming executive privilege. At lest this is my understanding. I may add to this as I discover more.
