[Tom Bishop]

Tom, how Trump handled sensitive documents while president is irrelevant.  How he handled sensitive documents that he no longer has a right to possess since leaving office is the issue.

It's an "issue" only because you and the mainstream journalists hyping this up think that the Secret Service would stop caring about how classified documents are handled if it's not the President. I think it is pretty clear that the official's status or title would not matter to the Secret Service in regards to the handling of classified documents.

The Secret Service is there at Mar-a-Lago now, and has been there. Portions of the sprawling mansion of Mar-a-Lago were hardened and secured for classified information. It is obvious to me at least, that the Secret Service would continue to provide security services for classified and sensitive information whether Trump was president or not.

Part of the hype here is the thoughtless thinking that "Trump took classified documents to a resort!!" and that there may be security issues, when the reality is that the people whose job it is to transport and secure classified documents, the Secret Service, were always there providing security services.

Trump has had US agents trained in the handling of physical and operational security at his side, in close proximity to him for years. It is very obvious that they would make sure that any classified information or potentially classified information, was in a secured environment.

[markjo]

It's an "issue" only because you and the mainstream journalists hyping this up think that the Secret Service would stop caring about how classified documents are handled if it's not the President.

No, the mainstream journalists are hyping the fact that Trump was required by law to turn over all presidential and other government owned documents to the National Archives when he left office.  You seem to think that the PRA does not apply to Trump for...  reasons.

[Tom Bishop]

NARA did take custody of the documents when Trump left office on January 20, 2021. They took legal custody. Refer again to this Feb 1, 2021 article from govexec which explains why NARA didn't physically take the documents:

https://www.govexec.com/management/2021/02/records-transfer-trump-white-house-underway/171770/

Records Transfer from the Trump White House is a Work in Progress

February 1, 2021

“As NARA anticipated, the process of completing the transfer of Trump presidential records into NARA’s physical custody is still ongoing,” an agency spokesperson told Government Executive on Friday. “Necessary funding from [the Office of Management and Budget] was delayed for many weeks after the election, which caused delays in arranging for the transfer of the Trump presidential records into NARA's custody. Even though the transfer of these records is ongoing, NARA assumed legal custody of them on January 20, 2021, in accordance with the Presidential Records Act.”

NARA anticipated that they would not physically have the documents. They did not have the funding due to budget issues. They assumed legal custody of the documents, in line with the Presidential Records Act.

What happens when you have legal custody of a child? You are responsible for them. If you let them stay with a grandparent, it's your responsibility. And if, for some reason, you were supposed to have the child physically in your custody and you are claiming that you couldn't because of poverty, that is your fault and you are the one who will be suffering the consequences, not the grandpatent.

It is apparent that NARA knew that the documents were at Mar-a-Lago and that Trump was cooperative with them. NARA worked with Trump representatives in cooperation from the beginning of 2021 to 2022, according to this NARA quote in this Feb 8, 2022 article:

https://www.newsweek.com/national-archives-denies-raiding-mar-lago-trump-documents-1677324

"Throughout the course of the last year, NARA obtained the cooperation of Trump representatives to locate Presidential records that had not been transferred to the National Archives at the end of the Trump administration," wrote the Archives in a statement

[markjo]

What happens when you have legal custody of a child? You are responsible for them. If you let them stay with a grandparent, it's your responsibility.

What happens when you have legal custody of the child, but the grandparent refuses to return physical custody of the child?  First, you ask nicely.  If they still refuse after several requests and even lie about not having the child, then you take legal action.

[Tom Bishop]

What happens when you have legal custody of a child? You are responsible for them. If you let them stay with a grandparent, it's your responsibility.

What happens when you have legal custody of the child, but the grandparent refuses to return physical custody of the child?  First, you ask nicely.  If they still refuse after several requests and even lie about not having the child, then you take legal action.

I don't see that Trump was refusing anything. In the NARA quote it says that they were cooperating. NARA also says that the Trump representatives were the ones to contact NARA about the classified documents.

https://www.newsweek.com/national-archives-denies-raiding-mar-lago-trump-documents-1677324

"Throughout the course of the last year, NARA obtained the cooperation of Trump representatives to locate Presidential records that had not been transferred to the National Archives at the end of the Trump administration," wrote the Archives in a statement.

"When a representative informed NARA in December 2021 that they located some records, NARA arranged for them to be securely transported to Washington. NARA officials did not visit or "raid" the Mar-a-Lago property."

Apparently NARA was relying on Trump representatives to go through the records at Mar-a-Lago during this time. Trump representatives found some classified records and alerted NARA about it. That doesn't sound like refusal to turn over documents to me. NARA then coughed up some money to have them securely transported to Washington. The Washington Post called it a "raid" and started the lie that there was something improper going on.

[markjo]

Tom, instead of quoting NARA from a year or two ago, maybe you should look to see what they have to say more recently.

How much time do outgoing Presidents have to go through their papers to determine what to retain as personal documents?   

The Presidential Records Act (PRA) requires the President to separate personal documents from Presidential records before leaving office. 44 U.S.C. 2203(b). The PRA makes clear that, upon the conclusion of the President’s term in office, NARA assumes responsibility for the custody, control, preservation of, and access to the records of a President. 44 U.S.C. 2203(g)(1). The PRA makes the legal status of Presidential records clear and unambiguous, providing that the United States reserves and retains “complete ownership, possession, and control of Presidential records.” 44 U.S.C. 2202. There is no history, practice, or provision in law for presidents to take official records with them when they leave office to sort through, such as for a two-year period as described in some reports. If a former President or Vice President finds Presidential records among personal materials, he or she is expected to contact NARA in a timely manner to secure the transfer of those Presidential records to NARA.

Emphasis mine.

[Tom Bishop]

That statement doesn't contradict the other NARA statements I provided. They are just carefully wording their statements to avoid blame since they are being scrutinized.

> The PRA makes clear that, upon the conclusion of the President’s term in office, NARA assumes responsibility for the custody, control, preservation of, and access to the records of a President. 44 U.S.C. 2203(g)(1).

This is correct. NARA is responsible for custody and control of the records. They don't mention here that in on Feb 1, 2021, ten days after Trump left office, they were claiming that funding issues had prevented them from making the necessary arrangements, and which is why they didn't have the documents.

A Trump representative on NewsMax said that NARA didn't get a facility for the documents and told them to take the documents to Mar-a-Lago. This lines up with NARA's claim that they didn't have funding to make arrangements for the documents.

> The PRA makes the legal status of Presidential records clear and unambiguous, providing that the United States reserves and retains “complete ownership, possession, and control of Presidential records.” 44 U.S.C. 2202

NARA allowed the records to be at Mar-a-Lago, as evidenced by the quotes where they were working in cooperation with Trump since early 2021. Trump also says that he was working in cooperation with them.

The quote they cite is also a bit misleading since the full quote is

https://www.archives.gov/about/laws/presidential-records.html

"The United States shall reserve and retain complete ownership, possession, and control of Presidential records; and such records shall be administered in accordance with the provisions of this chapter."

and if you scroll down to the exemptions section it says that the records shall be available to the former president:

"Exceptions to restricted access
...
(3) the Presidential records of a former President shall be available to such former President or the former President’s designated representative."

So, Trump should have access to the records. They aren't something he shouldn't have access to.

NARA retained control of the documents, was responsible for them, and does not argue in their statements that they asked for them back and were refused. They did not ask for them back. They worked in cooperation with Trump through 2021 as they described.

>There is no history, practice, or provision in law for presidents to take official records with them when they leave office to sort through, such as for a two-year period as described in some reports.

Here they leave out the fact that NARA had budgetary problems which prevented them from making appropriate arrangements for the materials, as they admitted on govexec.com, making it NARA's fault. They say that there is no provision in the law in that sentence, but also don't say that there is a restriction in the law. In the Feb 1, 2021 govexec.com quote they were basically arguing that it was just fine that they didn't have physical custody.

>If a former President or Vice President finds Presidential records among personal materials, he or she is expected to contact NARA in a timely manner to secure the transfer of those Presidential records to NARA.

A deceitful fun fact, which does not mention that Trump representatives did do this and were the ones to reach out to NARA, as NARA has admitted.

[Lord Dave]

Why would NARA go "ok Trump, we don't have a facility setup yet dedicated to your stuff so just take it back to your public countryclub full of guests and staff, all of which have no security clearance."

Damn things would have been safer in the Oval Office.

But naturally, Trump's people gonna say anything to avoid loooking like they did something wrong.

[Tom Bishop]

Mara-a-Lago isn't your everyday dime-a-dozen sprawling resort and mansion.

The Secret Security has hardened portions of Mara-a-Lago for sensitive information. See this 2019 document that I posted from the GAO regarding security at Mar-a-Lago: https://www.gao.gov/products/gao-19-246



It is possible that the Secret Security, who have been at Mar-a-Lago and with Trump since Jan 20, 2021, suddenly stopped caring about the security of classified or potentially classified documents for some reason, but that would be a hard sell.

[Tom Bishop]

Looks to me that the Secret Service still cared about perpetual improvements to security at Mar-a-Lago after Trump left presidency. This article came out before the 15 boxes incident occurred in December 2021/January 2022.

https://www.thedailybeast.com/donald-trumps-mar-a-lago-club-in-palm-beach-gets-a-dollar600000-security-upgrade-at-taxpayer-expense



It also appears that the top secret documents that were photographed were in the basement level, where the SCIF was located.

The SCIF was in the basement:

https://opoyi.com/usa/mar-a-lago-security-details-721546/



The photographed classified documents were in the basement:

https://www.axios.com/2023/06/10/trump-national-secrets-shower-classified-documents-indictment



It is unclear what was in the other boxes in other rooms, but it clearly says here that the secret documents that were photographed were in the basement.

[Lord Dave]

Looks to me that the Secret Service still cared about perpetual improvements to security at Mar-a-Lago after Trump left presidency. This article came out before the 15 boxes incident occurred in December 2021/January 2022.

https://www.thedailybeast.com/donald-trumps-mar-a-lago-club-in-palm-beach-gets-a-dollar600000-security-upgrade-at-taxpayer-expense

For it and communications hardware.  Likely so he can make encryoted calls or track calls.
And a locksmith.  So probably a few new locks.

But given none of these stops someone from becomming a member of the club or having housekeeping empty the garbage in a bathroom... Its kinda pointless.

[markjo]

Since none of us here are actually lawyers, here is what an actual lawyer has to say about how screwed Trump is:

[Action80]

Since none of us here are actually lawyers, here is what an actual lawyer has to say about how screwed Trump is:

Devin Stone is a hack...his areas of practice are business strategy, television, film & theatre, and digital media and technology. He was widely parroting Russiagate and how damaging that was to Trump...

[Tom Bishop]

Here is another lawyer:

https://twitter.com/realLizUSA/status/1668813463186022401

https://archive.is/20230613213659/https://www.wsj.com/articles/clintons-sock-drawer-and-trumps-indictment-documents-pra-personal-files-13986b28#selection-281.33-281.322

[Lord Dave]

Here is another lawyer:

https://twitter.com/realLizUSA/status/1668813463186022401

https://archive.is/20230613213659/https://www.wsj.com/articles/clintons-sock-drawer-and-trumps-indictment-documents-pra-personal-files-13986b28#selection-281.33-281.322

From the article

Judge Berman 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.

So what you're saying is that the president can categorize anything, even nuclear secrets, as 'personal records'? 

[markjo]

Here is another lawyer:

https://twitter.com/realLizUSA/status/1668813463186022401

https://archive.is/20230613213659/https://www.wsj.com/articles/clintons-sock-drawer-and-trumps-indictment-documents-pra-personal-files-13986b28#selection-281.33-281.322

But the president does not get to define what is "personal records" means.

(3) The term "personal records" means all documentary materials, or any reasonably segregable portion thereof, of a purely private or nonpublic character which do not relate to or have an effect upon the carrying out of the constitutional, statutory, or other official or ceremonial duties of the President.

The court decided that the Clinton tapes fit the description of personal record and therefore could not compel NARA to classify them as presidential records.  National defense documents with classification markings can not be reasonably considered to fit the description of personal records.

[Tom Bishop]

Here is another lawyer:

https://twitter.com/realLizUSA/status/1668813463186022401

https://archive.is/20230613213659/https://www.wsj.com/articles/clintons-sock-drawer-and-trumps-indictment-documents-pra-personal-files-13986b28#selection-281.33-281.322

From the article

Judge Berman 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.

So what you're saying is that the president can categorize anything, even nuclear secrets, as 'personal records'?

Yes, that is what the court determined. And on a public interest level, the President was obviously elected to make responsible decisions for the country, and that includes what he decides to do with his papers as he is leaving office.

But the president does not get to define what is "personal records" means.

(3) The term "personal records" means all documentary materials, or any reasonably segregable portion thereof, of a purely private or nonpublic character which do not relate to or have an effect upon the carrying out of the constitutional, statutory, or other official or ceremonial duties of the President.

The courts decided it.

The court decided that the Clinton tapes fit the description of personal record and therefore could not compel NARA to classify them as presidential records.  National defense documents with classification markings can not be reasonably considered to fit the description of personal records.

Actually it says that the court's determination of the Presidential Records Act is that only the President can determine what he considers to be his personal records. See the quotes from Judge Berman:

https://archive.is/20230613213659/https://www.wsj.com/articles/clintons-sock-drawer-and-trumps-indictment-documents-pra-personal-files-13986b28

Judge Amy Berman Jackson 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 Berman 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.”

I lost because Judge Jackson concluded the government’s hands were tied. Mr. Clinton took the tapes, and no one could do anything about it.

The bolded says that the responsibility is left to the President.

The lawyer in the article says:

In defending NARA, the Justice Department argued that NARA doesn’t have “a duty to engage in a never-ending search for potential presidential records” that weren’t provided to NARA by the president at the end of his term. Nor, the department asserted, does the Presidential Records Act require NARA to appropriate potential presidential records forcibly. The government’s position was that Congress had decided that the president and the president alone decides what is a presidential record and what isn’t. He may take with him whatever records he chooses at the end of his term.

...

Although he didn’t keep records in his sock drawer, he gathered newspapers, press clippings, letters, notes, cards, photographs, documents and other materials in cardboard boxes. Then Mr. Trump, like Mr. Clinton, took those boxes with him when he left office. As of noon on Jan. 20, 2021, whatever remained at the White House was presidential records. Whatever was taken by Mr. Trump wasn’t. That was the position of the Justice Department in 2010 and the ruling by Judge Jackson in 2012.

The court's decision was that if the President took the documents when he left office it was a personal record.

[garygreen]

nothing that you have said so far has anything to do with the actual indictment.

[Lord Dave]

Here is another lawyer:

https://twitter.com/realLizUSA/status/1668813463186022401

https://archive.is/20230613213659/https://www.wsj.com/articles/clintons-sock-drawer-and-trumps-indictment-documents-pra-personal-files-13986b28#selection-281.33-281.322

From the article

Judge Berman 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.

So what you're saying is that the president can categorize anything, even nuclear secrets, as 'personal records'?

Yes, that is what the court determined. And on a public interest level, the President was obviously elected to make responsible decisions for the country, and that includes what he decides to do with his papers as he is leaving office.

But the president does not get to define what is "personal records" means.

(3) The term "personal records" means all documentary materials, or any reasonably segregable portion thereof, of a purely private or nonpublic character which do not relate to or have an effect upon the carrying out of the constitutional, statutory, or other official or ceremonial duties of the President.

The courts decided it.

The court decided that the Clinton tapes fit the description of personal record and therefore could not compel NARA to classify them as presidential records.  National defense documents with classification markings can not be reasonably considered to fit the description of personal records.

Actually it says that the court's determination of the Presidential Records Act is that only the President can determine what he considers to be his personal records. See the quotes from Judge Berman:

https://archive.is/20230613213659/https://www.wsj.com/articles/clintons-sock-drawer-and-trumps-indictment-documents-pra-personal-files-13986b28

Judge Amy Berman Jackson 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 Berman 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.”

I lost because Judge Jackson concluded the government’s hands were tied. Mr. Clinton took the tapes, and no one could do anything about it.

The bolded says that the responsibility is left to the President.

The lawyer in the article says:

In defending NARA, the Justice Department argued that NARA doesn’t have “a duty to engage in a never-ending search for potential presidential records” that weren’t provided to NARA by the president at the end of his term. Nor, the department asserted, does the Presidential Records Act require NARA to appropriate potential presidential records forcibly. The government’s position was that Congress had decided that the president and the president alone decides what is a presidential record and what isn’t. He may take with him whatever records he chooses at the end of his term.

...

Although he didn’t keep records in his sock drawer, he gathered newspapers, press clippings, letters, notes, cards, photographs, documents and other materials in cardboard boxes. Then Mr. Trump, like Mr. Clinton, took those boxes with him when he left office. As of noon on Jan. 20, 2021, whatever remained at the White House was presidential records. Whatever was taken by Mr. Trump wasn’t. That was the position of the Justice Department in 2010 and the ruling by Judge Jackson in 2012.

The court's decision was that if the President took the documents when he left office it was a personal record.

I think the context of "personal recordings" is missing from your logic.  Because otherwise the argument is in direct contradiction to the law.  The law markjo quoted is pretty clear cut and not open to alot of interpetation.


But if the GOP's senior attorney wants to make that case, maybe he should do it in court, not on an opinion page.

[markjo]

Yes, that is what the court determined. And on a public interest level, the President was obviously elected to make responsible decisions for the country, and that includes what he decides to do with his papers as he is leaving office.

How is former president Trump holding on to national defense secrets in the public interest or fit any reasonable definition of a "responsible decision for the country"?  National defense secrets are neither personal nor presidential records.  They are the property of the agency that created those documents and should have been returned to the respective agency.