Two former government attorneys from the Reagan and George W. Bush administrations published a opinion piece in the Wall Street Journal Monday arguing that the Mar-a-Lago search warrant can have no legal basis, because the Presidential Records Act (PRA) controls the disposition of the documents at issue, and the PRA has no criminal enforcement mechanism. They cite the principle of statutory interpretation which says that a specific statute (the PRA) supersedes the effect of a more general statute (the Espionage Act, etc. cited in the warrant) where the two conflict. This got me interested in looking at this particular law in detail, and how it works.
(photo illustration by yours truly)
The Presidential Records Act, 44 U.S.C. 2201, et seq. (PRA) was enacted during the late 1970s, after Watergate, and took effect with the beginning of the Reagan Administration, apparently with the primary intent of making it harder for future Presidents to destroy documents relating to their activities. The first section sets up some definitions —most importantly for our analysis, the definition of “Presidential records.”
§2201(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.
(emphasis added)
(B)(i) and (B)(iv) are interesting here, because (i) limits "presidential records" to just documentary materials of the Executive Office of the President, not any of the other parts of the executive branch, such as cabinet departments, or executive agencies, and (iv) excludes duplicate copies of "presidential records.” (The definition of "agency" used here is the one applicable to the Administrative Procedure Act (APA) —the law which describes the process for making government regulations— and the Freedom Of Information Act (FOIA) —which governs public access to government records.) If President Trump has retained personal copies of any agency documents (such as the agency records relating to the "Russia collusion" and Hillary Clinton email investigations), they are not within the scope of the Presidential Records Act, and, if they're copies, the agencies would presumably retain the originals.
The next section makes it clear that Presidential records belong to the United States, and not the officeholder.
§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.
(emphasis added)
Arguably, the presidential records at Mar-A-Lago were outside the "possession and control" of the United States, except that the U.S. Secret Service (an agency of the United States) has responsibility for security and protection of a former President, and reportedly controlled access to the house when the FBI arrived. So, at least constructively (i.e. “theoretically, or in the abstract”), the United States has "possession and control" of the presidential records stored at Mar-a-Lago, though maybe not through the National Archives (but see below).
The next section describes how the President is supposed to keep the official “presidential records” separate from his “personal records,” on an ongoing basis, so that when it’s time to leave office, the documents are already sorted.
§2203. Management and custody of Presidential records
(a) Through the implementation of records management controls and other necessary actions, the President shall take all such steps as may be necessary to assure that the activities, deliberations, decisions, and policies that reflect the performance of the President's constitutional, statutory, or other official or ceremonial duties are adequately documented and that such records are preserved and maintained as Presidential records pursuant to the requirements of this section and other provisions of law.
(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.
Now, let’s look at some parts of the PRA which relate to a former President…
§2203(g)(1) Upon the conclusion of a President's term of office, or if a President serves consecutive terms upon the conclusion of the last term, the Archivist of the United States shall assume responsibility for the custody, control, and preservation of, and access to, the Presidential records of that President. The Archivist shall have an affirmative duty to make such records available to the public as rapidly and completely as possible consistent with the provisions of this chapter.
(g)(2) The Archivist shall deposit all such Presidential records in a Presidential archival depository or another archival facility operated by the United States. The Archivist is authorized to designate, after consultation with the former President, a director at each depository or facility, who shall be responsible for the care and preservation of such records.
(emphasis added)
The Archivist is the one responsible for putting the presidential records where they go for storage at the conclusion of the President's term. So what exactly are the records at Mar-a-Lago? Are they legally considered "presidential records," or not? Are they “personal records”? It would seem so, if they ended up in the personal possession of the former President. Or is the secure storage room at Mar-a-Lago considered an "archival depository" or "another archival facility operated by the United States," considering the security provided by the U.S. Secret Service? Did the Archivist "designate, after consultation with the former President, a director" to manage the records stored there? If so, what's the problem?
As has been reported, the President himself doesn’t pack his own boxes, though as mentioned in §2203(b), he’s the one who determines what are “Presidential records” and what are “personal records” during his term of office, and the PRA does have definitions of both to guide that process. The issue of “personal” vs. “Presidential” records was litigated in 2012, and caselaw suggests1 that the President has unreviewable authority to distinguish "presidential records" from “personal records,” a precedent set when Judicial Watch sued to get access to interview tapes kept by former President Clinton (by “unreviewable,” that means nobody else can change that decision after it’s made).
The Presidential Records Act also requires that the President set a time limit for each “presidential record,” no longer than 12 years after leaving office, after which the records become available to the public. This next section, which is rather long, is important because it describes the controls on access to the Presidential records.
§2204. Restrictions on access to Presidential records
(a) Prior to the conclusion of a President's term of office or last consecutive term of office, as the case may be, the President shall specify durations, not to exceed 12 years, for which access shall be restricted with respect to information, in a Presidential record, within one or more of the following categories:
(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) in fact properly classified pursuant to such Executive order;
(2) relating to appointments to Federal office;
(3) specifically exempted from disclosure by statute (other than sections 552 and 552b of title 5, United States Code), provided that such statute (A) requires that the material be withheld from the public in such a manner as to leave no discretion on the issue, or (B) establishes particular criteria for withholding or refers to particular types of material to be withheld;
(4) trade secrets and commercial or financial information obtained from a person and privileged or confidential;
(5) confidential communications requesting or submitting advice, between the President and the President's advisers, or between such advisers; or
(6) personnel and medical files and similar files the disclosure of which would constitute a clearly unwarranted invasion of personal privacy.
(b)(1) Any Presidential record or reasonably segregable portion thereof containing information within a category restricted by the President under subsection (a) shall be so designated by the Archivist and access thereto shall be restricted until the earlier of—
(A)(i) the date on which the former President waives the restriction on disclosure of such record, or
(ii) the expiration of the duration specified under subsection (a) for the category of information on the basis of which access to such record has been restricted; or
(B) upon a determination by the Archivist that such record or reasonably segregable portion thereof, or of any significant element or aspect of the information contained in such record or reasonably segregable portion thereof, has been placed in the public domain through publication by the former President, or the President's agents. [...]
So §2204(b)(1)(B) says the former President can cut short this time limit by publishing information about the Presidential records, in a memoir, for example; or just waiving it outright later, as provided for in §2204(b)(1)(A)(1).
A couple of other parts of §2204 are also noteworthy in the current case.
§2204(c)(2) Nothing in this Act shall be construed to confirm, limit, or expand any constitutionally-based privilege which may be available to an incumbent or former President.
and
§2204(e) The United States District Court for the District of Columbia shall have jurisdiction over any action initiated by the former President asserting that a determination made by the Archivist violates the former President's rights or privileges.
One might think from reading this that the proper place to sort out President Trump’s Fourth Amendment injury, and claims of executive privilege over the documents seized by the FBI at the instigation of the National Archives, should be in the District Court in Washington D.C., not in Florida. However, because these were actions of the Department of Justice, and not the Archivist directly, and took place in Florida, venue seems proper in the Southern District of Florida.
In the next section, the PRA provides the following exceptions for access to the former President’s records:
§2205. Exceptions to restricted access
Notwithstanding any restrictions on access imposed pursuant to sections 2204 and 2208 of this title—
(1) the Archivist and persons employed by the National Archives and Records Administration who are engaged in the performance of normal archival work shall be permitted access to Presidential records in the custody of the Archivist;
(2) subject to any rights, defenses, or privileges which the United States or any agency or person may invoke, Presidential records shall be made available—
(A) pursuant to subpoena or other judicial process issued by a court of competent jurisdiction for the purposes of any civil or criminal investigation or proceeding;
(B) to an incumbent President if such records contain information that is needed for the conduct of current business of the incumbent President's office and that is not otherwise available; and
(C) to either House of Congress, or, to the extent of matter within its jurisdiction, to any committee or subcommittee thereof if such records contain information that is needed for the conduct of its business and that is not otherwise available; and
(3) the Presidential records of a former President shall be available to such former President or the former President's designated representative.
(emphasis added)
The law in §2205(3) guarantees the former President access to the presidential records of his own administration, so how much of a concern can it be that the Presidential records may contain classified information which the former President has already seen?
(2)(B) provides for access by the incumbent President if such records contain information that is needed for the conduct of current business of the incumbent President's office and that is not otherwise available, subject to any rights, defenses, or privileges which the United States or any agency or person may invoke. (C) allows for the same with regard to Congress.
This implies the use of a subpoena, and resolution of the dispute by a court. For example, who determines whether the information contained in the record "is not otherwise available"? The Archivist, a court, or the entity making the request? Probably not the last, because how would they know, before they are given access? The Archivist, probably, because they presumably know what's in the records they have, but they're not in a position to rule on privilege or legal defenses. If the documents are copies, obviously they would be "otherwise available," if the Archives has the originals.
And (A) gives access via subpoena if needed for “any civil or criminal investigation or proceeding” which is presumably what the Mar-A-Lago search is based on. But the raid wasn’t apparently enforcing any subpoena.
The Presidential Records Act is primarily concerned with restricting access (for a certain period of time) to the former President’s “presidential records” by the public, not to a subsequent administration. But considering the narrow scope of the records involved —essentially only those records which pertain to the Executive Office of the President, not any agency— the exception in §2205(2)(B) that “if such records contain information that is needed for the conduct of current business of the incumbent President's office and that is not otherwise available,” should be a fairly rare thing. What would the next President need to see “for the conduct of the current business” of their office, particularly if they, like Joe Biden, seem determined to reverse every policy of the prior administration?
Both 2(A) and (B) are supposed to be “subject to any rights, defenses, or privileges which the United States or any agency or person may invoke,” presumably to include the former President as “any… person.”
There is a section of the PRA, §2208, which deals with assertions of executive privilege by a former President, but only in relation to disclosure of “presidential records” to the public. It provides that:
§2208. Claims of constitutionally based privilege against disclosure
(a)(1) When the Archivist determines under this chapter to make available to the public any Presidential record that has not previously been made available to the public, the Archivist shall—
(A) promptly provide notice of such determination to—
(i) the former President during whose term of office the record was created; and
(ii) the incumbent President; and
(B) make the notice available to the public […]
(3)(A) Upon the expiration of the 60-day period (excepting Saturdays, Sundays, and legal public holidays) beginning on the date the Archivist provides notice under paragraph (1)(A), the Archivist shall make available to the public the Presidential record covered by the notice, except any record (or reasonably segregable part of a record) with respect to which the Archivist receives from a former President or the incumbent President notification of a claim of constitutionally based privilege against disclosure under subsection (b). […]
(b)(1) For purposes of this section, the decision to assert any claim of constitutionally based privilege against disclosure of a Presidential record (or reasonably segregable part of a record) must be made personally by a former President or the incumbent President, as applicable.
(2) A former President or the incumbent President shall notify the Archivist, the Committee on Oversight and Government Reform of the House of Representatives, and the Committee on Homeland Security and Governmental Affairs of the Senate of a privilege claim under paragraph (1) on the same day that the claim is asserted under such paragraph.
(c)(1) If a claim of constitutionally based privilege against disclosure of a Presidential record (or reasonably segregable part of a record) is asserted under subsection (b) by a former President, the Archivist shall consult with the incumbent President, as soon as practicable during the period specified in paragraph (2)(A), to determine whether the incumbent President will uphold the claim asserted by the former President. […]
C) If the incumbent President determines not to uphold the claim of privilege asserted by the former President, or fails to make the determination under paragraph (1) before the end of the period specified in subparagraph (A), the Archivist shall release the Presidential record subject to the claim at the end of the 90-day period beginning on the date on which the Archivist received notification of the claim, unless otherwise directed by a court order in an action initiated by the former President under section 2204(e) of this title or by a court order in another action in any Federal court.
It’s reportedly an as-yet undecided question at law whether a former President can assert a claim of executive privilege against the Executive Branch, but this portion of the PRA suggests that executive privilege can only be successfully asserted by a former President when the incumbent President agrees. But as I said, this section of the PRA has to do with public disclosure of the information in a presidential record, not disclosure in a legal proceeding, or to the incumbent President “for the conduct of current business of the incumbent President's office and that is not otherwise available.” But if the incumbent President can simply waive the assertion of executive privilege of his predecessor, the part of §2205(2) which restricts access “subject to any rights, defenses, or privileges which the United States or any agency or person may invoke” seems kind of useless where executive privilege is concerned.
President Obama signed an executive order on January, 21, 2009 dealing with public disclosure of Presidential records, which is still in effect. It placed a duty on the Archivist to consider executive privilege before releasing Presidential records publicly, and included additional instructions regarding assertion of executive privilege by a former President:
Sec. 4. Claim of Executive Privilege by Former President. (a) Upon receipt of a claim of executive privilege by a living former President, the Archivist shall consult with the Attorney General (through the Assistant Attorney General for the Office of Legal Counsel), the Counsel to the President, and such other executive agencies as the Archivist deems appropriate concerning the Archivist's determination as to whether to honor the former President's claim of privilege or instead to disclose the Presidential records notwithstanding the claim of privilege. Any determination under section 3 of this order that executive privilege shall not be invoked by the incumbent President shall not prejudice the Archivist's determination with respect to the former President's claim of privilege.
(b) In making the determination referred to in subsection (a) of this section, the Archivist shall abide by any instructions given him by the incumbent President or his designee unless otherwise directed by a final court order. The Archivist shall notify the incumbent and former Presidents of his determination at least 30 days prior to disclosure of the Presidential records, unless a shorter time period is required in the circumstances set forth in section 1270.44 of the NARA regulations. Copies of the notice for the incumbent President shall be delivered to the President (through the Counsel to the President) and the Attorney General (through the Assistant Attorney General for the Office of Legal Counsel). The copy of the notice for the former President shall be delivered to the former President or his designated representative.
(emphasis added)
The same procedure as outlined here seems reportedly to have been followed by the Biden Administration regarding President Trump’s assertion of executive privilege, even though this case doesn’t have to do with public disclosure.
The public disclosure we’re all waiting for at the moment is what (the hell!) legal justification the Biden Administration used for their first-in-history FBI raid of a former President’s home…
—end—
The D.C. Circuit Court decision in Judicial Watch v. NARA was never appealed, and is only a trial court decision, so, while it can be cited to another court as “persuasive” precedent on how a different court has handled similar facts, it’s not a “controlling” or “binding” precedent that another court is obligated to follow.