PRA Grants Former Presidents Access, Control, Physical Possession & (apparently) Declassification Authority Over Their Presidential Records
§2204(b): The Trump Indictment Antidote
When I first realized there was an overlooked statutory antidote to the hoax Trump Indictment, I sat back and laughed out loud in my chair. Usually in matters of litigation - especially criminal prosecutions - nothing is funny. But this is. Funny and shocking. Hiding in plain site of the Presidential Records Act (PRA), is §2204(b(1) which states:
(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…
(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.
For those of you who are not laughing (or crying) right now, I won’t explain the punch line just yet. Instead, I direct your attention to my previous article, entitled:
“ALL 31 ESPIONAGE ACT COUNTS MUST BE DISMISSED AS A MATTER OF LAW - REGARDLESS OF DECLASSIFICATION”
Therein, I explained how three federal statutes allow a former President to routinely have his Presidential records in physical possession after his term ends, regardless of whether they were declassified before his term ended:
The Former Presidents Act (FPA) specifically allocates over $3 million in funds per year, an office, and staff, to the former President, starting the day after PTA support ends, for “review of Presidential records of a former President in connection with the transfer of such records to [NARA]”.
The Presidential Transition Act (PTA) grants training services, and facilities, and a $1.5 million dollar budget starting thirty days before the incumbent POTUS’ term ends, and extending for seven months after, for “winding up” the required Presidential record keeping of the PRA at §2203(a)(b) ; and the PTA further requires “a detailed classified, compartmented summary by the relevant outgoing executive branch officials of specific operational threats to national security; major military or covert operations; and pending decisions on possible uses of military force,” to be prepared for the incoming administration.
The PRA grants the former President (FPOTUS) perpetual access to his Presidential records in §2205(3): “the Presidential records of a former President shall be available to such former President or the former President’s designated representative.”
All of the above was then applied - in my previous article - with regard to the first element of 18 U.S.C. 793(e) - The Espionage Act: “Whoever having unauthorized possession of, access to, or control over any document…”
Such application of the FPA, PTA and PRA to 793(e) completely exonerates former President Trump, because 793(e) can’t be used to prosecute a person if he has lawful possession, control and access to the documents in question.
The PRA at §2205(3) textually assigns unrestricted access to Trump for his Presidential records, so scratch “access” out of 793(e) immediately. And we know from a recent example in SCOTUS history - pertaining to the Brett Kavanaugh confirmation circus - that NARA gave former President Bush physical custody of some of his Presidential records, while simultaneously denying them to Senator Feinstein. So yes, the exception to restricted access listed in §2205(3) refers to actual physical possession of such records outside of a NARA facility. And such unrestricted access began at high noon on January 20, 2021.
It’s important to pause here and consider that none of the three statutes previously discussed - PRA, FPA, or PTA - require FPOTUS to maintain a SCIF, or require that his designated representatives mentioned in §2205(3) - or his agents for purposes of §2205(b)(1)(B) - have a security clearance. Regardless, Trump is not being charged with violating classification laws. He’s charged with willful retention under 793(e), but since these statutes grant him physical possession, access and control over his Presidential records, he can’t be prosecuted for “unauthorized” possession, control, or access.
18 U.S.C. 793(d) is the proper section of the Espionage Act that pertains to anyone who initially “gained access” in the normal course of their duties working for the government. Of course, Donald J. Trump gained access to his Presidential records while POTUS, so the DOJ ministry - if they had a real case - rather than a pathetic Monty Python episode addiction - would’ve sought an indictment under that. The penalties are exactly the same for 793(e) & (d).
But there’s a catch - two catches actually: Jack Smith wouldn’t have been able to get a warrant to search Trump’s residence as per 793(d), because charging under 793(d) admits the target has lawful possession; and the second catch is that a prosecution for willful retention under 793(d) must prove there was a demand from an officer of the government who, by law, is entitled to demand such documents be given over, and that the target refused such demand.
But since - as the holding in Cook v NARA makes absolutely clear - §2205(3) of the PRA grants “unrestricted”, “unrestrained”, and “unfettered” access and use “completely privately” to FPOTUS as to his Presidential records - NARA can’t demand them back. All they can do is say please. And that’s the dirty little reason Jack Smith and the dirty DOJ charged Trump under 793(e). They wanted to raid his residence. They knew 793(e) didn’t apply. They did it anyway. Illegally.
THE PUNCHLINE IS CONTROL
We’ve thoroughly dealt with physical possession and access, but what about control? Doesn’t the PRA grant complete control to NARA? Actually, no:
§ 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.
NARA has responsibility for control subject to the demands placed on it by the rest of the PRA, specifically where a former President is granted actual control of public access to his Presidential records. Take a look at §2203(b)(1)(A)(i):
(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…
You may not be laughing yet, but you should be smiling. Why? Because without going any further (although we will), this destroys the last gasp of hope Jack Smith had of prosecuting Trump under 793(e), because it’s a statutory grant of control which allows FPOTUS to remove restrictions for the public to access his records.
The PRA at §2204(a) allows the incumbent President to specify durations, not to exceed 12 years, for which access shall be restricted to records falling under certain enumerated categories. The first category of restricted records listed pertains to classified national defense information:
§ 2204(a)(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;
All 31 Counts of Jack Smith’s absurd Indictment of Trump for violation of 793(e) concern records Trump is granted specific control over, and perpetual access to. Take that in for a moment. Get perspective.
Now get ready to howl:
§ 2204(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--
(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.
Say what? When the former President does what? Places “such record…in the public domain through publication by the former President, or the President’s agents.”
Notice that the Archivist has no control to stop the former President from releasing the record into the public domain. When the former President releases it into the public domain, the Archivist must confirm such release has actually taken place. Upon making such a confirmatory “determination”, the Archivist must remove the restriction imposed under (b)(1). There is no exception for any of the categories listed in §2204(a), not even classified NDI.
Note that §2204(b)(1)(B) allows the former President the option of releasing the actual Presidential record itself; or information from the record. And that’s a very important distinction that was the subject of interesting testimony during the hearings which are part of the legislative history of the landmark statute that is the PRA.
This is going to blow your mind, folks.
THE FORMER PRESIDENT HAS APPARENT DECLASSIFICATION AUTHORITY OVER HIS PRESIDENTIAL RECORDS AS PER THE LEGISLATIVE HISTORY TO THE PRA.
This final point is not necessary for the forthcoming dismissal of all 31 Espionage Act Counts. Those are DOA regardless. But this will be the final nail in the coffin for any other silly walk proposals Jack Smith may be hawking in the federal districts. Why? Because §2204(b)(1)(B) was apparently designed to allow a former President to declassify his Presidential records, which means they’ve got nothing on Trump. Nada. Zippo. Zilch. The testimony you are about to read destroys every element of the current Trump persecution.
A rational textual assessment is that this is a broad unrestricted grant of authority to put full Presidential records, or limited information therefrom, in the public domain by FPOTUS. That’s exactly what I realized when I started laughing out loud. And that’s exactly what the legislative history of the PRA proves.
THE SENATE HEARING THAT JACK SMITH MISSED
On September 15, 1978, there was a hearing in the Senate’s Committee On Governmental Affairs regarding the Senate’s version of the PRA. Larry A. Hammond, Asst. Attorney General, Office of Legal Counsel, Department of Justice, testified, along with the Archivist of the United States, James B. Rhoads. §2204(b)(1)(B) was addressed in a prepared statement by Archivist Rhoads, while Asst. Att. Gen. Hammond discussed it directly in the hearing, as follows:
Mr. HAMMOND: “Finally, it seems to me that there is one small question with respect to classified information. It is possible-and this is not in my statement; it was something brought to my attention by the intelligence community people this morning. It is conceivable that the bill might be read as saying that if a former President were to discuss or disclose classified information in a biography or in a speech, that thereafter the underlying classified documents would automatically be unprotected and would become public documents, irrespective of any Executive orders on classified information.
I don't read the bill that way. I think the bill ought to be read that if there is a waiver of the mandatory restrictions, regardless, the Archivist has the discretion to follow the Executive order on classified information, and make sure it is an appropriate release and not an ex post facto release.
That concludes my comments.”
Senator PERCY: “Does it make much sense to hold a document as classified when the same information is public?”
Mr. HAMMOND: “No, it doesn't; it certainly doesn't. The problem arises in situations in which a subject matter has been discussed publicly, but the underlying documents themselves have not. That is a source of concern.”
Senator PERCY: “I see.”
That is some very fascinating stuff, indeed. Neither the Senator, nor the Assistant Attorney General - from the Office of Legal Counsel - seemed to have any issue with the former President releasing classified information into the public domain. Both seemed to agree that if the former President had released the full Presidential record in question, that it made no sense to keep that document itself classified.
Hammond then said “the problem” he was referring to “arises in situations in which” classified subject matter is discussed publicly, but the underlying documents have not been released. To such a situation, Hammond said, “That is a source of concern.”
Immediately following Hammond, was the testimony of Archivist Rhoads. He didn’t address §2204(b)(1)(B) during the hearing proper, but his prepared statement did:
“S. 3494 also excludes the provision in H.R. 13500 which states that the Archivist shall lift a mandatory restriction from a record which contains information which has been placed in the public domain through its post-administration publication by a presidential aide or associate. While at first glance this requirement seems reasonable, upon closer examination its potential detriments far outweigh its potential benefits. First, it may actually restore the ‘chilling effect’ that the statutory period of mandatory restriction is intended to relieve. By communicating freely among themselves, the president and his staff risk the future revocation of a mandatory restriction validly imposed by the president. The whim of an aide could supersede the president's considered judgment.
Of more immediate concern to the National Archives is the burden such a provision would place on the responsible archivists. Rather than devoting their energies to processing the greatest number of documents for the earliest possible access, the archivists would spend a good deal of their time staying abreast of the myriad publications of the former president's aides or associates. I further suspect that it will be next to impossible to correlate the authors' revelations with the information contained in millions of documents. S. 3494, by limiting this provision to the publications of the former president, eliminates the possible resurgence of the ‘chilling effect’ and minimizes the prospective burden on the archivists.”
Wow. The Archivist of the United States was sitting right there in the room as Hammond raised the issue of the former President releasing classified records into the public domain, and he expressed no problem whatsoever with that scenario, neither in his own testimony, nor in his prepared statement. His main concern was that if a release of Presidential records was sanctioned by Congress as to the former President’s “aides or associates”, it would overburden his staff. Archivist Rhoads expressed his relief that the Senate version of the PRA limited §2204(b)(1)(B) to “publication by the former President.” The House version allowed for such publication by FPOTUS and “aides or associates”.
That is absolutely incredible stuff. §2204(b)(1)(B) was exactly enacted with the same provision Hammond’s testimony centered upon, except that “aides or associates” was changed to “agents”.
Three other witnesses testified that day: a historian; an archivist; and a journalist, but not one of them expressed any problem with a former President having authority to declassify his own Presidential records. Ann Morgan Campbell was the Executive Director of the American Society of Archivists, and she expressed favor of the Senate version, stating:
“I think the administrative burden for archivists of keeping track of the memoirs of every White House aide and intern would be immense, and I think that the Senate revision, which keeps in the publications of Presidents but now deletes publications by aides, is a sensible compromise.”
The declassification issue was addressed again before the PRA was passed. On October 10, 1978, the House read the final version, and §2204(b)(1)(B) was discussed, but the House appears to have danced around it a bit:
Mr. BRADEMAS: “Section 2204(b) (1) (B) provides that a restriction on access imposed by a President prior to his leaving office would terminate if the Archivist determined that restricted information had been placed in the public domain though a publication of the former President or one of his agents. Could you explain how you envision this provision working? Specifically, would any document mentioned in a publication be automatically available to the public? Also, what is meant by the term ‘agent’?”
Mr. PREYER: “If the gentleman will yield further, let me begin my response by clarifying the objective of this provision: The intent is to insure the prospects for an objective assessment by independent researchers and historians of any historically significant events that are laid before the American public through a publication by a former President or someone operating at his behest.
Here is how the section would work: A President or his agent publishes a memoir or gives an extensive television interview. A researcher requests a document from the Presidential collection which has been either quoted from or described with some precision in the mass publication. The Archivist determines that the document, or a specific portion of it, though under a presidentially imposed restriction has been made public by the President or his agent. Having decided that, the Archivist would then apply the Freedom of Information Act to the record. If it falls within one of the exemptions, the Archivist exercises discretion to determine whether to release the document. For example, he would not release a properly classified document or one which, if released, would result in an unwarranted invasion of someone's personal privacy. In this context, an agent is one who is operating on behalf, or with the approval, of the former President. It would include an individual who has been given special permission to examine and use otherwise restricted materials.
Aides and associates who may have acted on the President's behalf during his term of office are not encompassed by the term ‘agent’ except to the extent that they may in this way have subsequently served as agents for purposes of making previously restricted Presidential records public.”
Notice that the hypothetical by Mr. Preyer is strictly limited to the problem identified by Asst. Att. Gen. Hammond - a former President “publishes a memoir or gives an extensive television interview” - and then a researcher requests a document which has been “quoted from or described with some precision”. In that specific hypo, the underlying document in the possession of NARA would remain classified. But the hypo doesn’t address the scenario Senator Percy raised with Hammond, when the former President published the actual Presidential record on his own.
Take one last look at §2204(b)(1)(B):
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.
It allows publication of “such record”, or limited information therefrom, with no permission required from NARA, the incumbent President, any agency, or any other provision of law. The legislative history clearly indicates that a former President is granted authority to declassify his own Presidential records by making them public. No separation of powers issue appears to have been foreseen or discussed. This is probably because of the inclusion of §2204(c)(2), which states:
“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.”
Therefore, a former President cannot be prosecuted for having physical possession of his own Presidential records. A thorough study of our nation’s laws, legislative histories, judicial precedents, and 234 years of customary respect for former Presidents makes this absolutely clear. The DOJ should drop these charges immediately. The subpoena and warrant were obtained through false factual pretenses and deceptive use of precedent lacking full candor. The Indictment is a disgrace. No American should sanction it. It doesn’t matter how much you hate or love former President Donald Trump. This Indictment is un-American at its core. And everybody knows it.
Leo C. Donofrio, Esq.
[This article is dedicated to former U.S. Asst. Attorney Andrew McCarthy. I’m a Mets fan too. I was there when the ball went through Buckner’s legs. He got it over it. Will you?]