Good morning! It’s Thursday, June 15, 2023. The 2024 elections are 509 days away. If this newsletter was forwarded to you, subscribe here. If you want to contribute to support my work, donate here.
The Clinton most commonly mentioned in the context of the Trump documents indictment is Hillary.
That’s the case for obvious reasons: her infamous private email server is far from an exact analogue to Trump’s actions, but it is nonetheless a recent example of the Justice Department investigating a politician’s handling of classified information. (Hillary’s emails are “the topic the nation just can’t delete from its political conversation,” the New York Times wrote this week.)
But former President Trump has recently taken to invoking another Clinton when trying to defend against the new indictment: Bill.
“THE GRAND JURY WAS NEVER TOLD ABOUT THE PRESIDENTIAL RECORDS ACT OR THE CLINTON SOCKS CASE, BOTH EXONERATING,” Trump screamed into his Truth Social feed on Tuesday, shortly before his arraignment.
Later that night, in his remarks in New Jersey, he referred to the “Clinton socks case” as “the most important case ever on the subject” of presidential records.
So what is the “Clinton socks case,” and does it really exonerate Trump as he seems to believe?
Let’s start from the beginning.
When Bill Clinton was president, he sat for 79 confidential interviews with his longtime friend, the Pulitzer Prize-winning author Taylor Branch. The conversations later became “The Clinton Tapes: Wrestling History with the President,” a 2009 book by Branch that sought to provide “raw material for future historians” studying the Clinton presidency.
The project was Clinton’s own idea, partially so he could draw from his in-the-moment ruminations when crafting his post-presidential memoirs. Branch gave Clinton the tapes of each conversation; Clinton kept them in — you guessed it — his sock drawer, which Branch said Clinton called a “good hiding place.”
As GQ reported in a 2009 interview with Branch: “Acutely aware that their tapes could be subpoenaed at any moment and desperate to avoid making them public, Clinton squirreled away the cassettes in his sock drawer and has never spoken of them nor made them public.”
In 2010, the conservative group Judicial Watch filed a Freedom of Information Act (FOIA) request seeking the tapes from the National Archives. When the Archives replied that Clinton himself still had them, Judicial Watch sued under the Presidential Records Act (PRA), arguing that the tapes were official presidential records and therefore government property.
Here’s where Trump spies an opening.
The Judicial Watch lawsuit was eventually dismissed by U.S. district court judge Amy Berman Jackson, an Obama appointee, who ruled that the Archives “lacks any right, duty, or means to seize control” of the tapes.
In her opinion, Jackson explained that the PRA differentiates between presidential records (documents involved in carrying out official duties) and personal records (“diaries, journals, or other personal notes” not used in government business).
On the first category, the PRA is fairly clear: “The United States shall reserve and retain complete ownership, possession, and control of Presidential records,” the law states.
But Jackson ruled that presidents are given fairly wide latitude to decide which records are presidential and which are personal, and, as long as that categorization is made while the president is still in office, a court cannot order the Archives to contest the categorization.
On its face, that might seem helpful to Trump. Can’t he simply say he declared the documents he kept “personal records,” blocking the courts from going after them? No, he can’t. There are two major failings in this line of reasoning:
1) In the “sock drawer” case, the Archives agreed with Clinton’s determination that the Branch tapes were “personal records.” A private group was trying to get the agency to change its mind; Jackson ruled that the Archives had no “responsibility” to seek a record it deemed personal, and a judge could not order the agency to do so.
But that doesn’t mean there is no way for the Archives to go after a record improperly kept by a former president, as Trump and his allies seem to be suggesting. In the same ruling by Jackson, she writes that if the Archives deems that a record is presidential and that it wasn’t given to them on the day the president leaves office — as the PRA demands — there is an enforcement mechanism available.
In Jackson’s words, the Archives can make a “request to the Attorney General to institute an action for the recovery of missing records” and follow the legal process from there. That’s precisely what the Archives did, back in 2021. Last night, a Washington Post report detailed all the opportunities Trump was given to return the documents he is now being charged over. If Trump had complied with the Archives’ requests, we would not be here. Instead, he refused each time, partially on the advice of the head of Judicial Watch.
Jackson’s ruling simply holds that the Archives does not have to retrieve certain records, and a private group cannot sue to force them to. But they can if they want to and see a need to. You might disagree with the Archives’ decision to go after the Trump documents but not the Clinton tapes — but clearly there is a major difference between a recorded conversation with a historian and classified military documents. There is simply no way you could call documents detailing U.S. nuclear capabilities as Trump’s “personal” records, and him calling them “personal” does not make them so.
2) The Presidential Records Act does not even apply here! That’s right. I didn’t even have to drag you down that PRA rabbit hole. I wanted to show that if the PRA did apply, Trump’s argument would not hold up, since the “Clinton socks case” he is so fond of citing hinged on the difference between presidential and personal records (and that Trump cannot declare declare the documents he had were the latter, even when they were clearly the former).
Now, though, I have to inform you that the PRA is not even a relevant statute in this dispute. That might come as a surprise considering all the media attention the law has received during Trump’s post-presidency, including in this newsletter. But last week’s indictment revealed that the documents in his possession were a third category entirely: not personal or presidential records, but agency records.
See, if we return to the PRA, the act clearly states that it does not apply to “any documentary materials that are official records of an agency.” These agency records — documents created not by the White House, but by agencies like the CIA or Defense Department — fall under the jurisdiction of the Federal Records Act, a separate 1950 law that has no such “personal record” exception.
If documents would seem to apply to both the PRA and the FRA — like a document created by the CIA that is brought to the White House and is seen by the president — the FRA wins out, according to a 1993 court ruling.
Perhaps this is why the Trump indictment takes pains to lay out the exact agencies that created the documents he is accused of taking:
All of the documents in Trump’s possession were agency records, which means they were not covered by the PRA — and even if the PRA did allow a president to freely designate any presidential documents as “personal records,” it does not apply here.
Of course, that does not mean the Federal Records Act is the only law that applies to the documents in question. These also happened to be top-secret military documents, which is why the DOJ charged Trump under the Espionage Act, which makes it a crime to willfully retain such information.
But it does mean that Trump’s claims that the “Clinton socks case” has any bearing on this one are bogus. Trump’s allies have recently taken to complaining that the indictment does not mention the PRA, since they believed the law offered them such a sterling legal defense. “It’s striking, and legally notable, that the indictment never mentions the Presidential Records Act,” the Wall Street Journal editorial board recently wrote, falsely stating that the PRA “allows for good-faith negotiation with the National Archives” about what is “personal” and what is “presidential.” (No such negotiation period is outlined in the statute.)
It should be absurd on its face that Trump’s allies ever thought the PRA — the exact law that defines presidential records as U.S. government property — could ever help their case. But it is doubly absurd, considering the PRA is wholly irrelevant to the documents Trump is accused of taking.
All of this underlines a central fact in the Trump case: he has yet to deny any of the allegations laid out by the government about which documents he took, where he kept them, or whom he showed them to. Instead, Trump is acknowledging that he did take them, but arguing that he was allowed to.
In the indictment, he is repeatedly quoted as referring to the documents as “my boxes,” Trump’s familiar way of claiming possession over something (see: “my Kevin” or “my generals”). Trump went even further Tuesday night: “I had every right to have these documents,” he declared.
If Trump or his lawyers believe Bill Clinton’s sock drawer will offer any help in proving that, they are in for a rude awakening.
More news you should know
— Miami Mayor Francis Suarez is poised to launch a bid for the Republican presidential nomination tonight. Suarez, 45, will be the first Hispanic candidate to join the field and the third from Florida. Suarez has criticized both of his fellow Sunshine State candidates; the moderate mayor did not vote for Trump in 2016 and 2020, casting write-in ballots both times.
— Liberal scholar and activist Cornel West, who announced a presidential campaign under the People’s Party last week, is now switching to run as a candidate of the Green Party. The switch could cause problems for Biden, as the Green Party has access to the ballot in more states and West could draw from the president’s progressive support.
— The Federal Reserve held interest rates steady on Wednesday, pausing its aggressive anti-inflation campaign after hiking rates 10 consecutive times over the past 15 months. The decision comes after annual inflation dropped to 4% last month, its lowest level since 2021. The Fed estimated that inflation will be at 3.2% by the end of the year, but said interest rate increases could resume if the projections are not met.
— More than 1.1 million Americans have lost Medicaid health coverage since pandemic protections lapsed in April, according to the Kaiser Family Foundation. During the Covid health emergency, states were forbidden from reviewing the eligibility of their Medicaid recipients. Now that the reviews have returned to their former rigor, the Biden administration has expressed fears that some recipients will be dropped for unwittingly failing to complete administrative forms. Some states, such as Arkansas, have moved particularly quickly to purge enrollees.
— The House voted to block a resolution to censure Rep. Adam Schiff (D-CA) for his role in investigating Trump as the former chair of the House Intelligence Committee. The measure, which would have called for an Ethics Committee probe into whether Schiff should be fined $16 million, failed in a 225-196 vote, with 20 Republicans joining all Democrats in opposition.
— House Republicans released a 55-page report accusing Homeland Security Secretary Alejandro Mayorkas of “dereliction of duty” for the increase in illegal border crossings during his tenure. The inquiry will likely form the basis for an impeachment effort against Mayorkas, although the House GOP conference is not yet united behind such a push.
— The White House is continuing to deploy the term “MAGA” in its messaging, ignoring a watchdog agency that recently said its use violated the Hatch Act, a 1939 law preventing federal employees from engaging in political activity. Press secretary Karine Jean-Pierre was recently rebuked by the Office of Special Counsel for using the term; the OSC has little ability to enforce the Hatch Act, which has also been violated by other Biden aides and previous presidential administrations.
Today’s political planner
All times Eastern.
President Biden will meet with the CEOs of SeatGeek, LiveNation, Airbnb, and other companies to discuss “junk fees,” the surprise fees that companies charge consumers above a product’s listed price. He will delver remarks at 1:45 p.m. on his administration’s efforts to combat such fees, including new commitments secured from the aforementioned companies.
Later tonight, he will host a screening of “Flamin’ Hot,” a new movie about Richard Montañez, the Frito-Lay janitor who is credited with inventing Flamin’ Hot Cheetos.
First Lady Biden will headline a Biden campaign fundraiser in D.C. and join her husband for the film screening.
Vice President Harris has nothing on her public schedule.
The Senate will vote to confirm a U.S. district court judge nominee and to advance a U.S. appeals court judge nominee.
The House will vote on the Separation of Powers Restoration Act, which would make four key changes to limit presidential powers. The measure would:
- Terminate the president’s ability to declare national emergencies.
- Requiring the president to include a statement for each executive order specifying the statute granting the president the authority to issue the order.
- Give legal standing to members of Congress, state officials, and affected citizens to challenge executive orders in court.
- Repeal the War Powers Resolution, the 1973 law that allows the president to deploy troops abroad for up to 90 days as long Congress is notified within 48 hours.
The Supreme Court will meet for its weekly conference and release opinions at 10 a.m.
Before I go...
Here’s my favorite story of the day: No phones or cameras were allowed inside the courtroom where Donald Trump was arraigned earlier this week. So how did CNN manage to break the news that Trump had entered a not guilty plea? By recruiting a team of high school students.
The network hired students from Miami’s Palmetto Senior High School to act as production assistants for the day. The students sat in the courtroom with CNN’s reporters, who wrote up the key developments that were transpiring on notepads and tore off sheets for the students to bring outside the room.
The students then ran the reporting to one of their classmates, who stood by at the courthouse’s pay phone to dictate the news back to CNN. “In all my years of field producing, never have I been involved in an operation as complex as this literal game of professional telephone,” said Noah Gray, the CNN producer and Palmetto alum who came up with the plan.
And yes, the students had to be taught how to use the pay phone.
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