Posted on 06/14/2023 4:24:58 PM PDT by randita
Michael Bekesha, the ‘Clinton sock drawer’ lawyer, misses the distinction between agency records and presidential records.
I’ve already extensively addressed why the Presidential Records Act (PRA) is not a viable defense against charges that President Trump unlawfully and willfully retained national-defense information under Section 793(e) of the federal criminal code (which, in hope of avoiding Senator Lindsey Graham’s conniptions, I’ll refrain from calling the Espionage Act). So I’ll state the main point as succinctly as I can: Agency records are not presidential records.
Trump’s case is about agency records regarding the national defense — mainly, classified intelligence reporting generated by U.S. spy agencies. The PRA, by contrast, addresses documents and other records generated by and for the president in the carrying out of his duties.
(Excerpt) Read more at nationalreview.com ...
Please find for me the penalty for a president failing to give over non-personal records to the National Archives. Also find for me who is the final arbitrator of what will be regarded as such when there is any dispute. I am unable to find a time limit for settling disputes about records.
This should have remained a civil matter. Only an extremely dishonest DOJ would morph a dispute over the Presidential Records Act into accusations under the Espionage Act.
“Agency records are not presidential records” is beside the point.
The two types of records are not mutually exclusive regarding content, at least. A document (including a copy) in the hands of the President, sent or given to him to assist in performing presidential duties, is a presidential record under the PRA. The corresponding original, or another copy, in the hands of an agency, is (or can be) an agency record.
The PRA definition of a presidential record (in 44 USC 2201(2)(B)) states that “official records of an agency as defined in 5 USC 552(e)” [now 552(f) as McCarthy notes] are not presidential records.
But the definition in 5 USC 552(f) effectively just states that any information held by the agency, or held by a record management contractor for the agency, that is public (i.e., subject to production to the public), is an agency record.
From 5 USC 552(f): “For purposes of this section, the term— . . . ‘record’ and any other term used in this section in reference to information includes— (A) any information that would be an agency record subject to the requirements of this section when maintained by an agency in any format and (B) any information described under subparagraph (A) that is maintained for an agency by an entity under Government contract, for the purposes of records management.” (Note that “official” is not defined.)
So, saying that agency records are not presidential records is just saying that publicly producible records held by agencies are not presidential records. True. So what? A copy or compilation held by the President *is* a presidential record, if provided to the President to facilitate or assist in presidential duties. The exclusion of “agency records” in the PRA definition just allows the National Archives to avoid having to vacuum up and preserve the publicly accessible records of the entire executive branch as “presidential records.”
In legal writing courses, they teach you never to use the word “obviously” because it red-flags whatever follows as *not* obvious (or not well-supported, or even not true).
McCarthy uses “patently” — a fancier word, but it means the same.
“Patently,” he says, “intelligence reports compiled by the Defense Intelligence Agency, CIA, NSA, FBI, and other U.S. national-security agencies are agency records.”
Really? (No.)
First, if documents are compiled for the President, or even just sent to him to help him carry out his duties, those compiled or sent become presidential records under the PRA.
Second, since 5 USC 552 applies to public information held by agencies, it excludes classified materials (a category generally encompassing intelligence reports) from “agency records” as defined in 5 USC 552(f). See 5 USC 552(b), which contains a long list of exceptions to public records provisions in 5 USC 552, including “matters that are—(1)(A) specifically authorized under criteria established by an Executive order to be kept secret in the interest of national defense or foreign policy and (B) are in fact properly classified pursuant to such Executive order.” Thus the term “agency records” as defined in 5 USC 552(f) does not include (classified) intelligence reports — exactly contrary to what McCarthy says is “patently” true.
McCarthy also pretends the basis of the above rules, and the significance of the controversy, is about agencies having access to “their own records” to facilitate adequate oversight by Congress.
But there is no assertion that Trump has prevented any agency having access to “its own records.” Just the National Archives having access to “presidential records” under the PRA, a civil matter.
My understanding, that most here would probably agree with, is that if they are not classified, it would be a violation of the Presidential Records Act, which is apparently a civil charge, that would be tried in a civil court, as was one case against Bill Clinton. At least that seems to be everyone's understanding, best I can tell. Being a civil case, I assume the damages would be based on the value of the property in question. In this case, however, the charges are criminal charges, based on classified information mishandling, which the PRA doesn't address. There is no telling how it will ultimately play out.
You just won’t quit, will you? You must be getting paid by the word. Does cutting & pasting count tho? 🤣
“ First, do we agree that PRA and NARA issues are not criminal?”
Yes.
“If so, what was the reason for a raid?
What was the criminal probable cause?”
According to the indictment, Trump returned 15 boxes to NARA in Jan 2022. Of those 15 boxes, 14 contained a total of 197 classified documents, including 98 marked secret and 30 marked top secret. Some were also marked SCI (Special Compartmented Information) and SAP (Special Access Program), both designations above Top Secret. NARA made a referral to DoJ upon discovery of the classified documents and DoJ opened a criminal investigation. A grand jury submitted a subpoena for all documents with classification markings. Trump and his attorneys submitted additional classified documents under the subpoena and certified that all boxes had been searched and all classified documents turned over. The FBI reviewed security surveillance videos from Mar-a-Lago that showed a lot of the boxes being moved around, with boxes apparently being removed before the attorneys could search them. Based on this video, the FBI claimed to have probable cause to believe Trump was hiding and retaining classified documents in defiance of the subpoena. It was on this basis they obtained the search warrant.
The criminal probe already existed even before the grand jury subpoena.
The double standard at play is painfully obvious, but a selective prosecution claim hardly ever prevails. Fair or not, as long as the prosecutor can make a facially reasonable argument as to why one was prosecuted and another was not, the courts are loathe to interfere with prosecutorial discretion.
And regarding who packed the boxes, it really doesn’t matter. As everyone agrees, Trump was the head of the Executive Branch and is ultimately responsible.
GSA packed the boxes. That was because NARA declined to do so, the first time they have refused to participate in decades. I think that’s curious. Was it because they were involved in the plot with the DOJ to go after Trump later, knowing full well he’d inadvertently take a few questionable documents? I hope the House Oversight Committee compels NARA officials to testify before them as to why they chose not to pack Trump’s papers.
The raid was bogus. Whether the material was classified has no bearing on charges under the Espionage Act. That only cites that the material contains defense information. 18 USC 793(e) the specific part shown on the indictment states,
“Whoever having unauthorized possession of, access to, or control over any document,... or note relating to the national defense, or information relating to the national defense which information the possessor has reason to believe could be used to the injury of the United States or to the advantage of any foreign nation,...”
Is the DOJ really arguing that the President of the U.S. is not authorized to have defense information from his own administration? That he is going to willfully put it in the hands of or make it available to a person not entitled to receive it for the purpose of causing such injury or giving such advantage?
As for the indictment claiming Trump violated the Espionage act because he ,”or willfully retains the same and fails to deliver it to the officer or employee of the United States entitled to receive it;” The word the “same” matters as it references not just the information but also the intent of having the material. Disagreeing with the National Archives is not evidence Trump was holding back defense information that he had reason to believe could cause injury to the U.S. if it remained in his possession.
To me the most pertinent reason the raid was bogus is this, The Espionage Act does not apply to the President.
The purpose of:
Presidential Records (44 U.S.C. Chapter 22), § 2201. Definitions, "(2) The term "Presidential records" . . . (B) does not include any documentary materials that are (i) official records of an agency (as defined in section 552(e) of title 5, United States Code"
is to block a pathway that uses an FOIA request in order to discover information in national security materials that are classifed as (T) Top Secret, or (S) Secret, or (C) Confidential.
Interesting detail, thanks. I am no fan of McCarthy, and routinely discount his analysis after reviewing it, or listening to others. The issue I have is how it appears Trump and his surrogates such as Kash Patel appear to be making false claims that the PRA allows the President to determine what is Presidential (retained by gov) and what is Personal. That may be what a liberal civil circuit court judge ruled in favor of Bill Clinton, in a ruling that is considered non-precedent in nature, but that is not what the law and definitions within the law appear to set forth. I find these claims insulting to those who have actually reviewed the law, and damaging to Trump’s claim that he and his supporters are being honest and informed about the situation in general.
Trump is obviously being selectively targeted, but where does the law give Trump the right to retain military information of any kind, after he leaves office? And why would he need that, anyway. My reading of the Presidential Records Act is that information of that type would either be considered Presidential, or agency info, and ex-Presidents do not retain any governance of those documents. Ex-Presidents are only entitled to "Personal Records" which are extremely limited in nature, and the law, not the President, defines which is which.
So you feel unelected bureaucrats rightfully run the government = our lives?
We are a nation of laws, and should be thankful for that. Laws should be equally applied, else they lose their justification, and Trump is being unfairly targeted. So it’s an injustice, and a travesty. I hope he is able to escape this situation, but his predicament should not be seen as a green light for him to misrepresent what the laws actually say.
He and his defense team keep claiming that the Presidential Records Act is some sort of get out of jail free card, when a simple reading of it doesn’t confirm what he claims it does. This is a proverbial example of digging one’s hole deeper, in my estimation. And more representative of politicians on the left, than conservatives.
Thank you for that information.
§ 2203. Management and custody of Presidential records
(b) Documentary materials produced or received by the President, the President’s staff, or units or individuals in the Executive Office of the President the function of which is to advise or assist the President, shall, to the extent practicable, be categorized as Presidential records or personal records upon their creation or receipt and be filed separately.
- - -
National Archives Records Administration (NARA)
Press Statements in Response to Media Queries About Presidential Records - June 9, 2023 Statement
EXCERPTS:
Recent media reports have generated a large number of queries about Presidential records and the Presidential Records Act (PRA), 44 U.S.C. 2201-2209. The PRA requires that all records created by Presidents (and Vice-Presidents) be turned over to the National Archives and Records Administration (NARA) at the end of their administrations. Below is additional information about how NARA carries out its responsibilities under the PRA.
How much time do outgoing Presidents have to go through their papers to determine what to retain as personal documents?
The Presidential Records Act (PRA) requires the President to separate personal documents from Presidential records before leaving office. 44 U.S.C. 2203(b).
The PRA makes clear that, upon the conclusion of the President’s term in office, NARA assumes responsibility for the custody, control, preservation of, and access to the records of a President. 44 U.S.C. 2203(g)(1).
was your response a joke? The Presidential Records Act says no such thing. This is from the Clinton Sock Drawer Case:
https://casetext.com/case/judicial-watch-inc-v-natl-archives-records-admin
“Amy Berman Jackson, the judge presiding on that case, said a couple of very important things,” said Farrell. “That the president had an absolute, unreviewable right to take any records or documents that he wants when he leaves office.“
“No one can come back and second guess or double think or ask questions about what the president elects to take with him,” Farrell continued.
“And that has been the standing law unchallenged for the United States for something like 10 or 11 years,” said Farrell. “No one challenged it – unreviewable absolute authority to take whatever [the president] wants and no one can second guess it.”
https://www.oann.com/newsroom/judicial-watch-clinton-sock-drawer-audio-tape-case-exonerates-pres-trump/
That’s a liberal hack judge, who ruled in favor of Clinton in a civil circuit court, whose rulings by law do not carry future precedent. A federal criminal judge might look into that ruling, but they very well may not. It is hardly considered the defining interpretation of the law in question.
Read the law yourself, and show me the text where it says the President has any discretion whatsoever in determining what is considered personal records, or not. No one else has been able to yet, but maybe you’re the one who can find it.
As a side note, yes there is alot of misinformation on this topic. Kudos to you and Golden Eagle (even though we disagree on political topics) for posting what you have in this thread. I was not aware of these details.
Prior to knowing this, I’ve listened to others, namely Barnes, and their take made sense but was not thorough.
Now it seems, this is truly a quagmire. I know dems don’t care about the destruction of society but if this case goes against Trump, there will be civil unrest. And the GOP will go down with it. Voting for a replacement will not happen due to the deep anger. Again, dems don’t care but the GOP will collapse with it. I’m not saying it’s right or wrong but it will happen.
I disagree. Trump was THE elected executive. Agencies attacking him are unelected bureaucrats. He did nothing wrong and has nothing to escape other than over reach by out of control unelected Deep State and political foes.
If anyone is digging it is you and yours who condone the coup d’etat.
based your entire argument on the bogus interpretation of a Clinton activist judge, and some link to a university that doesn't even contain the full contents of the law.
What part of what I highlighted in post #103 do you not take as being part of my argument?
And the Clinton activist judge apparently understands Article II Section 1 of the Constitution more than you do. Which is why she allows the Chief Executive to determine what a president can take as a personal record, instead of a law, written by a Democrat House and Senate and signed off by Jimmy Carter.
LOL!
I read through the 31 charges under the Espionage Act, and none of them appear to be related to any personal letters. Out of the 335 or so classified documents recovered, they only charged him with 31. Presumably, those were the only documents that dealt with national defense issues.
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