OPINION: This article may contain commentary which reflects the author's opinion.
Donald Trump took to his Truth Social platform this week to draw attention to a previous similar case involving the possession of materials by another former president: Bill Clinton.
During a speech to supporters at his Bedminster, N.J., golf club following his appearance in a Miami federal courtroom on Tuesday after being indicted on 37 counts related to his handling of classified materials, Trump referenced the ‘Clinton sock drawer’ case that was litigated years ago by legal watchdog group Judicial Watch.
He cited a Wall Street Journal article by lawyer Michael Bekesha, who wrote that under the Presidential Records Act, a president “chooses what records to return or keep and the National Archives can’t do anything about it.”
“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,” Bekesha wrote in the Journal.
In 2009, historian Taylor Branch published “The Clinton Tapes: Wrestling History With the President.” The book is based on recordings of Mr. Branch’s 79 meetings with Bill Clinton between Jan. 20, 1993, and Jan. 20, 2001. According to Mr. Branch, the audiotapes preserved not only Mr. Clinton’s thoughts on issues he faced while president, but also some actual events, such as phone conversations.
The audiotapes were created by the White House, with Nancy Hernreich, the director of Oval Office operations at the time, facilitating the meetings between President Clinton and Mr. Branch and overseeing the logistics of the recordings.
“Did that make them presidential records?” Bekesha asked.
The National Archives and Records Administration did not receive the recordings. According to Branch, Clinton allegedly kept the recordings hidden in his sock drawer to prevent them from being made public and took them with him upon leaving office.
“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,” the attorney wrote.
“We sued in federal court and asked the judge to declare the audiotapes to be presidential records and, because they weren’t currently in NARA’s possession, compel the government to get them,” he added.
The Justice Department defended the National Archives and Records Administration (NARA) by asserting that NARA is not obligated to continually search for potential presidential records that were not submitted by the president at the conclusion of their term.
The department argued that the Presidential Records Act does not mandate to NARA “a duty to engage in a never-ending search for potential presidential records.” According to the government’s stance, Congress determined that the president holds the authority to determine which records qualify as presidential and retains the right to take with them any records they wish when leaving office.
U.S. District Judge Amy Berman Jackson, who presided over the case, agreed: “Since the President is completely entrusted with the management and even the disposal of Presidential records during his time in office,” she held, “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.”
Judge Jackson added that “the PRA contains no provision obligating or even permitting the Archivist to assume control over records that the President ‘categorized’ and ‘filed separately’ as personal records. At the conclusion of the President’s term, the Archivist only ‘assumes responsibility for the Presidential records.’ . . . 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.”