OPINION: This article may contain commentary which reflects the author's opinion.
It’s increasingly possible that a federal court case from ten years ago involving former President Bill Clinton and some audio tapes may place a huge role in the FBI’s search of Mar-a-Lago.
Early last week some 30 agents were dispatched to the palatial Palm Beach home of Donald and Melania Trump, where they spent all day executing a search warrant that included the former first lady’s wardrobe closet and the former president’s personal office.
According to Just the News, “legal experts say a decade-old case over audio tapes that Bill Clinton once kept in his sock drawer may have a significant impact” in the search involving Trump.
The outlet continued:
The case in question is titled Judicial Watch v. National Archives and Records Administration and it involved an effort by the conservative watchdog to compel the Archives to forcibly seize hours of audio recordings that Clinton made during his presidency with historian Taylor Branch.
For pop culture, the case is most memorable for the revelation that the 42nd president for a time stored the audio tapes in his sock drawer at the White House. The tapes became the focal point of a 2009 book that Branch wrote.
Ultimately, U.S. District Judge Amy Berman Jackson, an Obama appointee, rejected the lawsuit filed by Judicial Watch after she concluded that no Presidential Records Act provision empowers the National Archives to seize the records of a former president.
However, her ruling, as well as the Justice Department’s arguments at the time, made additional broad declarations that now appear to have direct ties to the FBI’s decision to grab handwritten notes and other files that Trump took with him when he left the White House.
The most notable of these, according to Just the News, “is that a president’s discretion on what is personal vs. official records is far-reaching and solely his, as is his ability to declassify or destroy records at will.”
“Under the statutory scheme established by the PRA, the decision to segregate personal materials from Presidential records is made by the President, during the President’s term, and in his sole discretion,” Jackson wrote in her March 2012 decision, which was never challenged on appeal.
“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 noted further.
Berman Jackson further noted in her ruling that a president could destroy records at will and only notify the National Archives that he had done so.
Regarding whether records that a president decided were personal can be taken by force after his term expires, the judge ruled that it was not reasonable to force the National Archives to go and retrieve Clinton’s tapes.
“Because the audiotapes are not physically in the government’s possession, defendant submits that it would be required to seize them directly from President Clinton in order to assume custody and control over them,” Jackson wrote. “Defendant considers this to be an ‘extraordinary request’ that is unfounded, contrary to the PRA’s express terms, and contrary to traditional principles of administrative law. The Court agrees.”
Just the News points out: “That defendant was the same Justice Department that authorized the raid on Trump’s estate.”
The outlet went on to report that the judge concluded as well that any decision to challenge a president’s decision regarding personal records only lies with the National Archives and is not reviewable by any court. She also wrote that should the Archive seek to challenge any president’s decision on records, the agency and the current U.S. attorney general may launch an enforcement action per the law. However, it is a civil matter and there is no criminal penalty.
“On the classification issue, both Presidents George W. Bush and Barack Obama signed executive orders — which remain in force to this day — declaring that presidents have sweeping authority to declassify secrets and do not have to follow the mandatory declassification procedures all other government officials do,” Just the News added.
Kevin Brock, former assistant FBI director for intelligence, told the outlet that the overly broad warrant signed by a federal magistrate judge authorizing the Mar-a-Lago search “apparently makes a novel legal assertion that any presidential record kept by a former president is against the law.”
“You have to wonder what the other living former presidents think about that. They have the right and, apparently, clear desire to remain silent,” he added.
