The Special Counsel’s Misinformation in the Trump Indictment

Joshua D. Filler is an attorney living in Maine. He served as Director of Legislative Affairs for the Mayor of New York from 2000-2001, as Director for Local Affairs at the White House Office of Homeland Security from 2002-2003, and as Director of State and Local Coordination at the U.S. Department of Homeland Security from 2003-2005 where he drafted presidential directives and federal statutes in the homeland security realm.

The special counsel’s federal indictment against former President Donald Trump accuses him of willfully retaining classified documents and failing to deliver them to the government in violation of 18 U.S.C, section 793(e). A fatal flaw in the special counsel’s theory against the former president is the claim that upon leaving office, “Trump was not authorized to possess or retain classified documents” unless he sought a waiver pursuant to Executive Order 13526, which he did not. This assertion is both central to the indictment and demonstrably false.

The special counsel confuses a former president’s complete loss of authority over all classified information under Article 2 of the U.S. Constitution, and relevant statutes, with a complete loss of control over any classified information. Both decades of past practice, court precedent, and federal law provide that former presidents have a right to retain certain classified documents.

From the dawn of our Republic up until the presidency of Ronald Reagan, presidents were allowed to treat their White House papers as their personal property. This includes numerous presidencies that followed passage of the Espionage Act and other national security laws that make it a crime to unlawfully possess, store, or distribute classified information. Today, section 2203 of the Presidential Records Act (PRA) of 1978 provides former presidents with a statutory right to retain their “personal records.”

The PRA is a civil statute without means for criminal enforcement and applies to current and former presidents and bestows upon them certain obligations, rights, and privileges. Key among them is deciding which documents are “presidential records” for official housing by the National Archives and which documents are “personal” and may be taken upon leaving office.

Section 2201 of the PRA defines presidential records and goes on to list and define a series of other documents that are not presidential records, including agency records, personal records, etc., that are to be managed differently. Under section 2203 of the PRA, the president, not the Department of Justice (DOJ), the National Archives, or anyone else, must make records categorization determinations within the context of all the records “created or received” by him and his staff.  

The PRA’s framework nowhere differentiates between classified and unclassified documents. This is important because so much of what a president does each day takes place in the classified realm. This includes a vast array of intelligence, security, and military briefings, and other activities that Congress was and is aware of. 

A presidential diary, an example of a personal record listed in the PRA, would likely contain some of the most sensitive material at the time written and the president’s views on it. Thus, when Congress passed the PRA, it left to the president how to decide what is a presidential record and what is personal, and by default what is neither, regardless of national security classification. The waiver of the need to know to have access to classified information available under EO 13526 for former presidents must be read within the context of the PRA and therefore applies to materials not covered by the statute.

Some legal analysts have argued the records in question in the Trump case are “agency records” and therefore outside the purview of the PRA. However, while the records may turn out to be agency files, at present, such statements assume a fact not in evidence and miss the larger point entirely. The very question of whether the classified documents Trump took to Florida are presidential, personal, or agency records is a question to be resolved under the PRA in a civil proceeding, not a criminal one under the Espionage Act. None of this presumes Trump acted in accordance with the law. It simply means he did not commit the crime charged in retaining the documents in question (interestingly, the special counsel did not charge Trump for how he stored the classified documents under 18 U.S.C., section 793(f)).

In the 2012 case of Judicial Watch, Inc. v. National Archives & Records Administration, the U.S. District Court in Washington, DC dismissed a claim by Judicial Watch to have the National Archives seize audio tapes created by and in the custody of former president Bill Clinton on the grounds that Clinton had erroneously categorized the tapes as personal and not presidential records (Clinton was not a party to the suit). Those tapes included conversations about U.S. military involvement in Haiti and diplomatic issues concerning Bosnia, which no doubt included classified information.

In defending the National Archives, DOJ at that time argued there is no judicial review of a president’s compliance with the PRA and Clinton’s handling of the tapes was under his sole discretion. DOJ went on to argue that seizing the documents from Clinton would be “unfounded, and contrary to the PRAs express terms.” The court largely agreed and held that the National Archives has no authority to “assume control over records the President categorized and filed separately as personal records” and that the responsibility to classify such records as personal is “left solely to the President.”

While the district court decision in the Judicial Watch case is not dispositive in the Trump matter, it is relevant, and it most certainly demonstrates the degree to which DOJ has altered its legal theories and the extent it has gone to turn a dispute over possessing records by a former president into an unprecedented criminal prosecution.