From Ed Whelen on twitter:
In today’s WSJ, Judicial Watch’s Michael Bekesha claims that Presidential Records Act gives an outgoing president complete authority to “decide what records to return and what records to keep at the end of his presidency.” Bizarro World account of PRA.
Bekesha makes wild wrong turn in his very first sentence. Indictment is *not* predicated in any way on PRA. As Andrew McCarthy explains here classified docs Trump retained were *agency records* outside scope of PRA.
Frivolous Trump Argument No. 1: Classified Intelligence Reports Compiled by Government Agencies Are ‘Personal Records’ under the Presidential Records Act | National ReviewAgency intelligence records are not even presidential records under the PRA, much less a president’s personal records.
@mentionsPRA’s definition of “presidential records” excludes “agency records” from their scope. That of course doesn’t make them “personal records.” It instead means that PRA doesn’t govern them at all.
Insofar as classified materials that Trump retained fall under PRA, they are obviously not “personal records.” Nothing in PRA remotely suggests that former president may take and retain classified materials. PRA sharply limits possessory rights of former presidents.
Let’s get into weeds of 2012 district-court ruling in Judicial Watch v. NARA.NARA agreed with former president Clinton that audiotaped interviews were his personal records. JW claimed that admin-law principles required NARA to take control of tapes.
District court ruled in JW v. NARA that JW’s admin-law claim “is not redressable.” Ruling concerns limits of *judicial review under PRA*, not limits of current president’s power over classified materials retained by former president.
It’s 1 thing for court to rule it doesn’t have authority to order NARA, against its judgment, to take control of docs taken by former president. It would be quite another to maintain that PRA prevents current president from recovering classified docs from former president.
As court in JW v. NARA recognized, PRA assumes that a president will comply with PRA “in good faith” and thus limits “scope of judicial review.” But that in no way implies any limits on current president’s authority to act against bad-faith noncompliance by former president.
District court in JW v. NARA notes that binding D.C. Circuit precedent in Armstrong II “differentiat[ed] between agency records and Presidential records.” That’s the key distinction that Bekesha op-ed utterly ignores. Here’s what Armstrong II says.
Lest there be any confusion on the point: Classified materials fall within scope of “agency records” under FOIA, but are exempt from disclosure obligation under 552(b)(1).
As Andy McCarthy aptly sums it up, there is no reason to read PRA to bar prosecution of former president for mishandling national-defense info after his time as president.
Under Bekesha’s misreading of Presidential Records Act, current president has no means (other than begging) of getting former president to return wrongly retained national-security docs, no matter how sensitive. Very odd to torture PRA and 2012 ruling to reach such a result.
Classified materials that Trump took with him were either “presidential records” or “agency records.” They weren’t “personal records,” and there is zero evidence that he ever tried to *categorize* them as such. (No, taking them doesn’t qualify.) In any event. any limitation on a *court’s* ability to review a president’s decisions in admin-law challenge under PRA can’t possibly prevent a sitting president from exercising his authority to recover classified materials.
“A law that governs the archiving of presidential records prevents the sitting president from retrieving classified materials and prosecuting their wrongful retention” is not an argument I ever expected to hear.
They will say anything and it’s got a ton of traction on the right wing media. It doesn’t matter whether it makes any sense. Their God says it so it’s true. And the WSJ editorial page is ready to offer up whatever drivel it takes to help legitimize this garbage.