"Although the indictment against Donald Trump doesn’t cite the Presidential Records Act, the charges are predicated on the law. The indictment came about only because the government thought Mr. Trump took records that didn’t belong to him, and the government raided his house to find any such records," Michael Bekesha, a senior attorney at Judicial Watch, wrote in a column this week at The Wall Street Journal.
"This should never have happened. 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. I know because I’m the lawyer who lost the 'Clinton sock drawer' case," he continued.
Explaining further, Bekesha noted, "The Clinton Tapes: Wrestling History With the President," a book authored by historian Taylor Branch, was published in 2009. The book draws upon recordings of 79 meetings between Branch and Clinton, which took place from January 20, 1993, to January 20, 2001. These audiotapes, as noted by Branch, not only captured Clinton's reflections on the challenges he encountered during his presidency but also preserved certain real-life events, including phone conversations:
* Mr. Clinton calling several U.S. senators and trying to persuade them to vote against an amendment by Sen. John McCain requiring the immediate withdrawal of troops from Somalia.
* Mr. Clinton’s side of a phone call with Rep. William Natcher (D., Ky.) in which the president explained that his reasoning for joining the North American Free Trade Agreement was based on technical forecasts in his presidential briefings.
* Mr. Clinton’s side of a phone conversation with Secretary of State Warren Christopher about a diplomatic impasse over Bosnia.
* Mr. Clinton seeking advice from Mr. Branch on pending foreign-policy decisions such as military involvement in Haiti and possibly easing the embargo of Cuba.
The audiotapes were created by the White House, and Nancy Hernreich, who served as the director of Oval Office operations at the time, facilitated the meetings between Clinton and Branch, as well as managed the logistics of the recordings. The question of whether these audiotapes qualify as presidential records arises due to their origin and the involvement of White House personnel in their production.
"The National Archives and Records Administration was never given the recordings. As Mr. Branch tells it, Mr. Clinton hid them in his sock drawer to keep them away from the public and took them with him when he left office," Bekesha wrote.
"My organization, Judicial Watch, sent a Freedom of Information Act request to NARA for the audiotapes. The agency responded that the tapes were Mr. Clinton’s personal records and therefore not subject to the Presidential Records Act or the Freedom of Information Act," he noted further.
He stated that Judicial Watch initiated a lawsuit in federal court, requesting the judge to officially recognize the audiotapes as presidential records. Additionally, since the tapes were not currently in the possession of the National Archives and Records Administration (NARA), Judicial Watch sought to compel the government to obtain and secure them.
In defending NARA, the Justice Department argued that NARA doesn’t have “a duty to engage in a never-ending search for potential presidential records” that weren’t provided to NARA by the president at the end of his term.
Furthermore, the department argued that the Presidential Records Act does not mandate NARA to forcefully acquire potential presidential records. According to the government's stance, Congress has determined that the president has the sole authority to determine which records qualify as presidential records and can retain whichever records they choose upon leaving office, the attorney explained, adding the federal judge in the case, Amy Berman Jackson, agreed.
“Since the President is completely entrusted with the management and even the disposal of Presidential records during his time in office, it would be difficult for this Court to conclude that Congress intended that he would have less authority to do what he pleases with what he considers to be his personal records," she held.
Bottom line: Trump was the president of the United States, whether his political enemies like it or not, and he had the right to the records he had in his possession. End of story.
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