“THE GRAND JURY WAS NEVER TOLD ABOUT THE PRESIDENTIAL RECORDS ACT OR THE CLINTON SOCKS CASE, BOTH EXONERATING!” Trump bleated into the ether yesterday.
It’s a MAGAworld talking point that’s getting a ton of traction, with the former president and his minions pumping into the wingnut ecosystem 24/7. Just today it made it into the editorial page of the Wall Street Journal.
So, what the hell is the “CLINTON SOCKS CASE?”
It’s what happens when a demented billionaire with access to competent counsel starts taking legal advice from a weirdo pitchman in a muscle T-shirt who runs a shop dedicated to filing stunt lawsuits against Democratic politicians.
As CNN reported back in August:
[Tom] Fitton, the longtime head of the legal activist group Judicial Watch, had a simple message for Trump — it was a mistake to give the records to the Archives, and his team should never have let the Archives “strong-arm” him into returning them, according to three sources familiar with the matter.
Those records belonged to Trump, Fitton argued, citing a 2012 court case involving his organization that he said gave the former President authority to do what he wanted with records from his own term in office.
The Judicial Watch president suggested to Trump that if the Archives came back, he should not give up any additional records, according to sources with knowledge of their conversations, which have not been previously reported.
The “2012 court case” involved 79 cassette tapes made by historian Taylor Branch of then-President Bill Clinton, which were supposedly stored in his sock drawer — hence the “SOCKS CASE.” Judicial Watch sued the National Archives in 2010, a full nine years after Clinton left office, demanding that the agency declare the tapes a presidential record and go seize them from Branch. Or Clinton. Or Simon & Schuster. Or whoever then had custody of tapes.
Note that Fitton’s shop sued none of those parties to compel them to produce the records, meaning that the only issue was Judicial Watch’s authority to use a civil suit to compel NARA to reclassify the tapes as presidential records and ask for them back. US District Judge Amy Berman Jackson dismissed the case because “the relief that plaintiff seeks – that the Archivist assume ‘custody and control’ of the audiotapes – is not available under the PRA.”
Judge Jackson made clear that she was not deciding “whether the former President’s retention of the audiotapes as personal is a matter that is subject to judicial review.”
In fact, her order referenced a DC Circuit opinion from 1993, in which the court specified, “We did not hold in [our prior cases] that the President could designate any material he wishes as presidential records, and thereby exercise ‘virtually complete control’ over it, notwithstanding the fact that the material does not meet the definition of ‘presidential records’ in the PRA.”
Nonetheless, Fitton and his supporters have seized upon the following passage as proof that Trump had the absolute and unreviewable right to designate any document, even those classified or relating to the national defense, as “personal” and take it home with him:
The PRA does not confer any mandatory or even discretionary authority on the Archivist to classify records. Under the statute, this responsibility is left solely to the President.
“No one but the president gets to pick what’s presidential records, no one but the president gets to pick what are personal records,” he brayed on Twitter. “And the Archivist, which is being used as a cutout for the anti-Trumpers running our government here in DC, has no authority to second-guess him.”
Fitton and Trump have strangely ignored the parts where the Judge Jackson said that the decision to designate an item as personal must be “made during, and not after, the presidency.” This is consonant with the plain language of the PRA which specifies that documents “shall, to the extent practicable, be categorized as Presidential records or personal records upon their creation or receipt and be filed separately,” i.e. not years after the fact when the outgoing executive decides it would be cool to keep information on Israel’s nuclear program and/or plans for a military invasion of Iran.
And as national security lawyer Kel McLanahan explained (to me) on the Opening Arguments podcast, designating a document as “personal” does not change the classification status. Nor does it remove national defense information from it.
Trump has similarly insisted that the PRA contains no enforcement mechanism, cheerfully disregarding the part of the SOCKS CASE where Judge Jackson wrote, “The PRA authorizes NARA to invoke the same enforcement mechanism embodied in the Federal Records Act, which begins with a request to the Attorney General to institute an action for the recovery of missing records.”
And so it is more than a little weird — not to say disingenuous — for the lawyer who argued the SOCK DRAWER CASE, Michael Bekesha, to pen an editorial in the Journal opining that “The Presidential Records Act allows the president to decide what records to return and what records to keep at the end of his presidency. And the National Archives and Records Administration can’t do anything about it.”
Perhaps Bekesha’s memory is confused — he really did get absolutely bodied by the court in that SOCKS CASE. From Judge Jackson’s order:
Plaintiff’s indulgence in wishful thinking in order to minimize the ramifications of its own lawsuit underscores the lack of redressability fatal to the case. It is telling that counsel for plaintiff was repeatedly unable to identify anything specific the Court could or should order the Archivist to do under these circumstances:
THE COURT: What does “assume custody and control” mean in your view? What do you want them to do?
[PLAINTIFF’S COUNSEL]: Because they are also required to make them available to the public, “assume custody and control” would be to take control of the records or have somebody else take control of the records . . . .
THE COURT: How do they take control? . . . He issues a press release[:] I’ve got them . . . . Then what? What are they supposed to do?
[PLAINTIFF’S COUNSEL]: As I said, there are many options.
THE COURT: Tell me one.
[PLAINTIFF’S COUNSEL]: One option is they can call President Clinton and ask . . . .
THE COURT: Okay. He says no. Now what?
[PLAINTIFF’S COUNSEL]: They write a nice letter. They maybe use one of these enforcement mechanisms. Maybe they try something else.Throughout the hearing, plaintiff remained unable to identify any avenue for relief or to specify the terms of the order it was seeking.
In point of fact, Bekesha himself admitted that he wasn’t challenging Clinton’s designation of those tapes as “personal” — he was challenging NARA’s refusal to retroactively designate them as “presidential.” And the court told him to get lost because, even if Judge Jackson could force NARA to do that, she had no power to order DOJ to begin an enforcement action.
President Trump is welcome, under the SOCK DRAWER CASE, to introduce evidence that he designated any of these records as personal, rather than Presidential, at the time they were created or handed to him. Keep in mind, though, that the standard for that is rather high; the records must be “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.”
Well, it would be high if Trump hadn’t lucked into the Calvinball chambers of Judge Aileen Cannon, who may well be willing to play along with this nonsense about the SOCK DRAWER case. Or perhaps she will note that, as a jurist sitting in the Eleventh Circuit, she is not bound by dicta from a trial judge’s ruling in the federal court in DC. Although if she was looking to her sister judges, she’s got a much more recent precedent easily at hand from Judge Colleen Kollar-Kottelly, who recently ordered Trump’s econ loon Peter Navarro to turn over government emails stored on his ProtonMail account.
“Enforcement of the statute by the government to assert its ownership rights militates that it must be free to utilize those legal processes available to it whether or not they are expressly provided for by statute,” the court wrote. “In this instance, the United States correctly invokes the Court’s judicial power to require the return of the wrongfully retained emails.”
Funny how Trump and his pals never mention that one, huh?
Inside Trump’s public bravado and private resistance over Mar-a-Lago documents [CNN]
Trump’s Boxes and Clinton’s Sock Drawer [WSJ]
Judicial Watch v. National Archives [Docket via Court Listener]
Liz Dye lives in Baltimore where she writes about law and politics and appears on the Opening Arguments podcast.
