Friday, July 7, 2023

Literary Corner: Vital Caselaw (of Which There Is Much)


You're welcome!

A No, No!

by Donald J. Trump. 45th President of the United States of America

Vital caselaw, of which there is much,
further confirms that the Presidential Records Act (PRA)
is the only statute which applies
to Presidents and their records.
These cases build on the Clinton Socks case
in making it clear that Presidents have
complete latitude and authority
when it comes to documents, as well as that
the PRA has no criminal enforcement mechanism.
Deranged Jack Smith knows this, but refuses
to even mention the words "Presidential Records Act'"
in his Scam Indictment of Biden's Political Opponent
(who is leading by a lot) in the middle of a Campaign —
a No, No!

Once again, the Clinton Socks case is not about the former president's cat. It's about the historian Taylor Branch, an old friend of Bill Clinton's, who interviewed him periodically throughout the presidency, 79 times in all, as a kind of audio diary Clinton would be able to use in writing his presidential memoir. Branch, recording his own impressions of the conversations after each one, would get a book out of it too, The Clinton Tapes: Wrestling History with the President, which came out in 2009. Clinton kept the tape cassettes (remember the 1990s?) in his White House living quarters:

“[Clinton] showed me where he was keeping the tapes, and there were these two little boxes for each set of the tapes in the sock drawer,” Branch told The Washington Post [a few weeks ago, June 15]. “He would leave, since he’s the president and he’s busy, and I’d put the tapes in there.”

So after the book came out, "Judicial Watch", that's the rightwing polo shirt model, Tom Fitton, filed a FOIA request for the tapes, in the evident hope of finding some "dirt", and was surprised to learn that the National Archives didn't own them: they aren't presidential documents under the terms of the Presidential Records Act, which includes

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.... 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

but not personal records, including

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...

So when Fitton sued NARA (complaining that it "had determined that the Clinton tapes were not presidential records apparently without ever reviewing the content of the tapes", as if that were their job), he lost, obviously, in March 2012. And that's pretty much all the "vital caselaw (of which there is much)" that I can find on the PRA. (Where on earth did the minions find that language? Dr. Google has nothing.)

Contrary to Trump's strange assertion, the judge in the case was not Ketanji Brown Jackson (then serving as vice chair of the United States Sentencing Commission) but Amy Berman Jackson.

It's true that the PRA has no criminal enforcement mechanism. That's Trump's favorite kind of crime, isn't it? It's not true that presidents have "complete latitude and authority", though, and it's certainly not the case that ex-presidents do (he keeps forgetting).

None of the stolen documents that we've heard about is a personal document (unlike the ones deleted from Secretary of State Hillary Clinton's private server, which the FBI was able to largely restore and study), and it's likely there aren't very many. Can you picture Trump keeping a diary? 

Meanwhile, there are civil enforcement mechanisms. If the National Archive—the actual owner of most of them, per PRA—was to sue Trump for the stolen documents, they'd win, without question, and then the cops could collect them and turn them over. And there are criminal enforcement mechanisms for espionage, even for presidents, whatever the ex-president says, to say nothing of ex-presidents. Espionage is a no-no. Or a No, No! if you prefer.

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