If you live on Earth 1, you are vaguely aware of something called the “Clinton Socks Case” only because Donald Trump references it as one of his shifting excuses for why the DOJ’s indictment against him is improper. If you live on Earth 2, the case is an article of faith – the trump card (sorry) if you will that will help Dear Leader avoid the hoosegow.
As a lawyer, I was like, “hmm, wonder what that case is about” because I had never heard of it. So I did some digging and here is what I found. I know, it is a fool’s errand to debunk Trump’s lies and part of his genius is throwing spaghetti against the wall to see what will stick, but if nothing else, you can use this to argue with your crazy uncle at Thanksgiving dinner.
So, first thing’s first. The formal caption for the case is Judicial Watch v. National Archives and Records Administration. It is reported at 845 F. Supp. 2d 288, but if you do not have Lexis/Nexis or Westlaw you can read it here.
What was the case about? During his time in office, Bill Clinton spoke with the author Taylor Branch from time to time to create an “oral history” of his presidency. The conversations were recorded on a total of seventy-nine tapes, excerpts of which were released in 2009 by Branch in a book called The Clinton Tapes: Wrestling History with the President. Branch claimed Clinton kept the tapes in a sock drawer, hence the shorthand name for the case.
After the book came out, Judicial Watch, which is basically a right wing advocacy group and is now run by a guy named Tom Fitton (not a lawyer) filed a Freedom of Information Act (FOIA) request with the Clinton Presidential Library for the tapes, arguing the tapes were records subject to the Presidential Records Act (PRA). The library denied the request, citing an exception in the PRA designating “diaries, journals or other personal notes serving as the functional equivalent of a diary or journal” as personal records that do not fall within the PRA (or FOIA). 44 U.S.C. 2201(3)(A). Judicial Watch then appealed that decision to the National Archives, which is responsible for all presidential records after a president’s term in office. The Archives noted it did not have possession of the tapes and regardless, also concluded that based on the information presented to it, the tapes “created by Taylor Branch are personal records of President Clinton as defined by the PRA.” Judicial Watch, 845 F. Supp. 2d at 293. Judicial Watch then filed a lawsuit and asked a federal judge to order the Archives to assume control of the tapes and deposit them in the Clinton Library because, according to Judicial Watch, the tapes were in fact official presidential records. The court rejected Judicial Watch’s claim and dismissed the case.
Why does Trump think this case helps him? You will be shocked to learn Trump is employing a standard trick he (and, in fairness, lawyers) uses routinely – he takes words out of context in an effort to make a point. Trump has argued that this case says that the President has total authority to declassify documents and that is what he (Trump) did, ergo, no crime was committed. And there is a kernel of truth in this statement that is entirely beside the point. Yes, in footnote 2, Judge Berman Jackson says “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.” Judicial Watch, 845 F. Supp. 2d at 295 n.2. Seems pretty persuasive except for three things. First, simply declassifying a document does not ipso facto make it a personal document. It simply means that a document that could only be handled by someone with clearance to do so can now be handled by people who do not. Second, the Clinton tapes (arguably) fell within a specific exception in the PRA, to wit, “diaries, journals or other personal notes serving as the functional equivalent of a diary or journal.” 44 U.S.C. §2201(3)(A). There is no suggestion that the documents DOJ ultimately recovered from Mar-a- Lago were of this nature and indeed, the charges against Trump refer to national defense information, another reason the classified/declassified argument is a red herring. Third, the court noted that a President cannot “designate any material he wishes as personal records” as a way of avoiding judicial review. In other words, even if Trump had declassified and designated all the documents he took as personal (which there is no indication he did, but stay with me) and the Archives sought to retrieve them, a court would have still been the final arbiter of whether the records were subject to the PRA or not. Of course, all of this is beside the point because Jack Smith charged Trump with violating the Espionage Act by improperly possessing national defense information and did not charge him with violating the PRA.
But there are still other reasons why this case does not help Trump. Most significantly, the arguments put forward by Judicial Watch itself cut against his position, not in support of it. What do I mean? Well, when it filed its complaint, Judicial Watch sought specific relief from the court. To wit, it asked the Court to issue an order directing the Archives to “assume custody and control” of the Clinton tapes. At oral argument, Judicial Watch’s attorney was asked about that. Specifically, Judge Berman Jackson asked how the Archives could collect the tapes. Judicial Watch’s attorney suggested the Archives could either “make a phone call, they could write a letter,” or, failing that, “maybe use one of these enforcement mechanisms.” Judicial Watch, 845 F. Supp. 2d at 303. Of course, the “enforcement mechanism” the attorney spoke of is one we are now all familiar with – “initiating action through the Attorney General for the recovery of records wrongfully removed …” 44 U.S.C. §2905(a).
In other words, the exact things the Archives did with Trump – sending him multiple letters and then, when he blew them off, contacting the Department of Justice to help the Archives recover the documents Trump took – are the things Judicial Watch suggested the Archives should have done in regards to the Clinton tapes! But the reason Judicial Watch did not get the relief it sought was for a basic reason any 1L would recognize (and one of the other things that make the case unhelpful for Trump): the use of the word “may” instead of “shall” in discussing the Archivist’s ability to assume custody of presidential records in the PRA. See 44 U.S.C. §2112(c)(“When the Archivist considers it to be in the public interest, he may exercise … all the functions and responsibilities otherwise vested in him pertaining to Federal records or other documentary materials in his custody or under his control.”)(emphasis added).
In the Clinton case, the Court found it was without authority to force the Archivist to do anything because “the only enforcement tools provided to the defendant under the PRA are committed to the agency’s sole discretion.” Judicial Watch, 845 F. Supp. 2d at 302. In the Trump case, the Archivist did exercise her discretion as was her right to do. Ironically, the one way Judicial Watch might have bolstered its case would have been to name Clinton as a defendant as well and claim he violated the PRA. At that point, a court might have ordered in camera review of the tapes, but this was the one time in its long history the group did not sue a person with the last name Clinton. But again, none of that is helpful to Trump because 1) there is no suggestion he designated these documents as personal; 2) the Archivist was within her rights to seek the documents he kept; and 3) DOJ got a search warrant to collect the documents after a judge agreed there was probable cause to believe several federal statutes had been violated.
TL;DR – Clinton’s tapes fell within a specific exception to the PRA deeming journals, diaries, and similar such things as personal records. The Court found that the Archivist had sole discretion to seek their retrieval and having opted not to, the Court could not force him to do so. In the Trump case, there is no indication the documents in question are personal (if anything, the public reporting shows the exact opposite), the Archivist did exercise her authority to retrieve the documents and in the Clinton case, Judicial Watch – whose boss is now counseling Trump – argued in favor of exactly the actions the Archives took in the Trump case (sending him letters seeking the return of the documents and then referring the matter to DOJ for enforcement). If Trump cites Judicial Watch in a court pleading in support of his theory that war plans, nuclear secrets, and whatever else he pilfered are somehow “his” personal records, it will not be successful.
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