Posted on 06/20/2023 8:01:03 AM PDT by SoConPubbie
On Tuesday, 45th President and leading 2024 presidential candidate Donald Trump pleaded not guilty to all 37 fraudulent counts relating to him supposedly “mishandling” classified documents from Special Counsel Jack Smith.
President Trump has turned Jack Smith’s frivolous federal indictment of him on its head as he cites the Presidential Records Act as a defense.
"Under the Presidential Records Act, which is civil not criminal, I had every right to have these documents," Trump said after returning from Miami during a speech at his Trump National Golf Club in New Jersey.
The Presidential Records Act is a 1978 law that allows presidents to decide what records to keep and take, regardless of what the National Archives and Records Administration thinks.
Trump is correct, as per usual, to use this act as a defense.
Senior Attorney Michael Bekesha, a man who lost a case against former President Bill Clinton for taking White House audiotapes when he left office and kept them in his sock drawer, explains Clinton was safe because he was a President who saw it fit to take the documents before his term ended.
"The same is true with Mr. Trump," Bekesha writes in an opinion piece for the Wall Street Journal.
He adds, "Mr. Trump, like Mr. Clinton, took those boxes with him when he left office. As of noon on Jan. 20, 2021, whatever remained at the White House was presidential records. Whatever was taken by Mr. Trump wasn’t. That was the position of the Justice Department in 2010 and the ruling by Judge Jackson in 2012."
“SO NOW THAT EVERYONE UNDERSTANDS THAT THE PRESIDENTIAL RECORDS ACT, PLUS THE CLINTON SOCKS CASE, TOTALLY EXONERATED ME FROM THE CONTINUING WITCH HUNT BROUGHT ON BY CORRUPT JOE BIDEN, THE DOJ, DERANGED JACK SMITH, AND THEIR RADICAL LEFT, MARXIST THUGS, WHEN ARE THEY GOING TO DROP ALL CHARGES AGAINST ME, APOLOGIZE, AND RETURN EVERYTHING THAT WAS ILLEGALLY TAKEN (FOURTH AMENDMENT) FROM MY HOME?” Trump wrote in a post on Thursday on his top-rated social media platform, Truth Social.
“THIS WAS NOTHING OTHER THAN ELECTION INTERFERENCE!” Trump added.
In an op-ed by former Harvard law professor Alan Dershowitz on Substack, he concludes that a "[c]riminal indictment of former president has no legitimate basis."
“The bottom line is that if Mr. Trump or his lawyers allege — even without his testifying — that he declassified the documents, a criminal charge of unauthorized possession of classified documents will be difficult to prove. That doesn’t mean that a prosecutor could not get a grand jury to indict this particular ham sandwich. It does mean that it’s unlikely that a conviction against Mr. Trump would be sustainable,” Dershowitz writes.
“Based on what we know, we believe that there is no legitimate basis for a criminal indictment of Mr. Trump based on the material that was found at Mar-a-Lago,” Dershowitz concludes.
Not uncommon here.
Ah, but if President Trump’s possession of documents is his right under the presidential records act, then there is no basis of prosecution.
The only precedent set was that the court did not have the ability to force NARA to try to recover items from a former president if they chose not to. That was the grounds for the dismissal, so if there was any precedent, that was it. Anything else in the decision that does not directly relate to that reasoning is dicta.
“Dicta in law refers to a comment, suggestion, or observation made by a judge in an opinion that is not necessary to resolve the case, and as such, it is not legally binding on other courts but may still be cited as persuasive authority in future litigation.”
For personal documents, not government documents. That’s the difference and Trump has run his mouth about the government documents.
Your opinion.
According to this article, it would appear that Judge Jackson “ruling”’was more than an opinion.
But in a 2012 opinion, the trial judge overseeing Judicial Watch’s lawsuit ruled that even if the tapes should have been designated to be presidential records, she could not order the National Archives to recategorize them.
“The [Presidential Records Act] does not confer any mandatory or even discretional authority on the archivist,” wrote U.S. District Judge Amy Berman Jackson in that 2012 ruling. “Under the statute, this responsibility is left solely to the president.”
That’s a big leap from saying that the court could not order NARA to reclassify the tapes to saying that the president can take anything he wants and classify it as personal.
These are personal documents.
She knows.
She just can’t resist being TDS.
They are only personal documents if they have nothing to do with his official or ceremonial duties as president. Otherwise, by law, they are presidential records or possibly agency records, both of which are property of the government.
Cite the law
44 USC Chapter 22
Section 2202. Ownership of Presidential records
The United States shall reserve and retain complete ownership, possession, and control of Presidential records; and such records shall be administered in accordance with the provisions of this chapter.
44 USC chapter 22
Section §2201. Definitions
As used in this chapter—
(1) The term “documentary material” means all books, correspondence, memoranda, documents, papers, pamphlets, works of art, models, pictures, photographs, plats, maps, films, and motion pictures, including, but not limited to, audio and visual records, or other electronic or mechanical recordations, whether in analog, digital, or any other form.
(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) 1 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.
44 USC Chapter 22
Section 2201(3)
(3) The term “personal records” means all documentary materials, or any reasonably segregable portion therof,2 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.
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Tell that to the judge, she’s the one who ruled on it.
Well, since it was a district court ruling of questionable value as a precedent, even in the DC Circuit, I would not pin your hopes on that decision. The Florida court is under no obligation to even consider it, much less consider it binding.
PRA. If there is a dispute they can negotiate. Not a criminal matter.
I agree, but the law clearly does not support the idea that the president can designate anything he wants as personal records, nor does it say that presidential records belong to the president, as many have claimed. However the PRA does allow the Archivist to refer disputes to the Attorney General “for the recovery of records wrongfully removed and for other redress provided by law.”
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