On Monday, the judge overseeing Donald Trump’s trial for stealing top secret documents issued an order that had most legal experts sputtering in disbelief. Judge Aileen Cannon asked defense lawyers and prosecutors to edit two competing excerpts of potential jury instructions that said:
- Jurors without any security clearance would have a right to review all the incredibly sensitive and dangerous top secret documents Trump had taken, or
- “A president has sole authority under the PRA [Presidential Records Act] to categorize records as personal or presidential during his/her presidency. Neither a court nor a jury is permitted to make or review such a categorization decision.”
Let’s skip scenario A for the moment, which for prosecutors is more of a threat than a jury instruction, and focus on scenario B, which is a shocking misrepresentation of the Presidential Records Act. The difference between a personal or presidential record is defined very precisely by the act itself—not by a president.
First, the act says presidential records belong to the government: “The United States shall reserve and retain complete ownership, possession, and control of Presidential records.” Pretty damn clear.
It also says: “Upon the conclusion of a President’s term of office . . . the Archivist of the United States shall assume responsibility for the custody, control, and preservation of, and access to, the Presidential records of that President.” Also pretty damn clear.
To prevent any misunderstanding, the act helpfully defines “presidential records”: The term "Presidential records" means documentary materials . . . created or received by 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.
In other words, pretty much everything of any importance.
The president, however, does not have to turn over “personal records,” which the law very specifically describes as three things:
(A) diaries, journals, or other personal notes . . . 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 . . .;
(C) materials relating exclusively to the President's own election to the office of the Presidency . . . .
That’s it. Pretty obviously, by those criteria, highly classified documents containing potentially devastating national secrets are decidedly not “personal records.”
Trump’s lawyers have apparently seized on one sentence of the PRA to argue their case: “Documentary materials produced or received by the President . . . shall, to the extent practicable, be categorized as Presidential records or personal records upon their creation or receipt and be filed separately.” [Emphasis added.]
Trump’s lawyers are using legal sophistry to argue, ridiculously, that the sentence means presidents get to do the categorizing however they like. But the clear meaning of the act is that presidents are required to categorize the documents according to the specific definitions of the act itself, which have been painstakingly delineated. Otherwise, Trump’s lawyers would be arguing that each president has the power to unilaterally rewrite the Presidential Records Act, creating their own definition of what constitutes a “personal record.”
From what I learned in 8th grade civics class, presidents do not have the power to rewrite laws passed by Congress. If presidents could define a personal record merely at their whim, that would completely obviate the purpose of the PRA.
Trump’s lawyers are also relying on a previous presidential records case involving Bill Clinton, who had hired a historian to interview him and document his time in office. A lawsuit sought to have 79 interview audio tapes made public, asserting they were presidential records. Clinton argued plausibly that they fell under the “diaries and journals” category of personal records. A judge agreed with Clinton, though the ruling did say that the archivist has no standing to challenge a decision by a president categorizing a record as presidential or personal. “Under the statute, this responsibility is left solely to the president,” the judge said.
So presidents do have some discretion to categorize documents, but it’s absurd to argue they can completely ignore the PRA’s definitions. Presidents may have the power to designate a tangelo as an orange, but they don’t have the power to designate an apple as an orange.
I’m not a lawyer, but I can understand plain English. The fact that Judge Cannon cannot—or willfully refuses to—is deeply disturbing.