Is Trump Correct in Claiming Ownership of Presidential Records?

The recent attention surrounding former President Donald Trump's possession of certain documents has sparked a debate on the legality and appropriateness of his actions. This article explores the nuances of the Presidential Records Act (PRA) and clarifies the legal status of presidential records in the context of Trump’s case.

Understanding the Legal Framework

According to the Presidential Records Act, it is not illegal for Trump to possess these documents. He does not own them but has significant control over them. The Archivist of the United States is required to consult with the former President regarding these records to negotiate the circumstances of their turnover.

Importantly, the PRA does not limit or expand any constitutionally-based privilege available to former presidents. As stated in 2204 Sec. 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.'

Additionally, 2205 Sec. 3 of the PRA explicitly states, 'The Presidential records of a former President shall be available to such former President or the former President’s designated representative.'

Given this information, Trump can certainly make a case for the personal nature of these records, especially considering that former Presidents like Reagan, Bush 41, Clinton, Bush 43, and Obama all asserted their privileges under the PRA. These precedents support Trump's position that his records are presumptively personal and not subject to review by partisan appointees at the Department of Justice (DOJ) or the National Archives and Records Administration (NARA).

Analysis of the Legal Language and Precedents

The Supreme Court's decision in Armstrong v. Bush further supports this interpretation. In this case, the SCOTUS used broad language stating that "the PRA accords the President 'virtually complete control' over his records during his time in office." [924 F.2d at 290].

A former President of Judicial Watch, an organization that has worked in this area for decades, noted that the indictment against Trump 'dishonestly ignores the U.S. Constitution, the Presidential Records Act legal precedent, and the DOJ's/Archives' previous position that WH records a president takes with him when he leaves the White House are presumptively personal and not subject to review by partisan Biden appointees at DOJ or Archives.' This statement emphasizes the importance of a non-partisan interpretation of the law.

Legal Protocols and the Role of NARA and DOJ

The PRA establishes a protocol of negotiation between the Archivist and the former President, as stipulated in 2205 Sec. 6. This process is governed by the provisions of [5 U.S.C. § 552b7], which is part of the Freedom of Information Act (FOIA). Under this protocol, the burden is on the agency to prove 'compelling circumstances' to justify any actions taken to seize or review records.

Furthermore, under the PRA, NARA is limited to a 'review' of the papers, not to their outright seizure. This review does not include the power to conduct a full-scale raid on private records, especially those that are personal in nature, such as medical records, tax returns, and communications with attorneys.

Conclusion

In conclusion, the legal framework outlined in the Presidential Records Act provides a strong basis for Trump to claim ownership of the disputed records. The precedents set by previous administrations and the SCOTUS decision in Armstrong v. Bush support this claim. The legal processes and protocols specified in the PRA further reinforce the notion that the NARA's actions are scrutinized and must meet stringent standards to justify any interference.

It is crucial for all parties to respect the constitutional and legal frameworks in place, ensuring that the principles of due process and non-partisan governance are upheld. A thorough, non-partisan review of the law is necessary to maintain the integrity of the legal and constitutional provisions surrounding presidential records.