Saturday, June 17, 2023

Just tell him what he wants to hear

[T]he Washington Post is out today with another tick-tock of the Trump documents debacle confirming that the former president talked himself into 37 felony counts because Tom Fitton of Judicial Watch convinced him that he didn’t have to comply with a grand jury subpoena.

[...]
Trump time and again rejected the advice from lawyers and advisers who urged him to cooperate and instead took the advice of Tom Fitton, the head of the conservative group Judicial Watch, and a range of others who told him he could legally keep the documents and should fight the Justice Department, advisers said. Trump would often cite Fitton to others, and Fitton told some of Trump’s lawyers that Trump could keep the documents, even as they disagreed, the advisers said.
Fitton is not a lawyer, although he does head up a shop dedicated to suing the government for dirt on Democrats.

  Above the Law
Bill Clinton allegedly kept 79 cassette tapes made by his biographer Taylor Branch in his sock drawer. Nine years after Clinton left office, Judicial Watch sued, demanding that the National Archives designate the tapes a presidential record, seize them, and then hand them over under FOIA. Judge Amy Berman Jackson dismissed the case, because “FOIA does not give rise to a private right of action to compel an agency to retrieve documents that are not in its possession” and “there is no indication in the record that Congress intended to supplant the limited remedies available in the PRA with FOIA.”

[...]

Fitton seized on a passage in the holding saying that “The 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.” From this, he infers that the PRA confers absolute authority on the executive to declare any document, no matter how sensitive to the national security, a personal record and thence to expropriate it.

This ignores the explicit language of the PRA, describing what makes a document “presidential” and requiring that personal documents be designated as such when created or received — i.e. not when the defeated president is packing to leave the White House, and certainly not 18 months after that when NARA comes calling. [...] And taken to its logical extreme, Fitton’s reading would empower a former president to declare the entire CIA archives a personal record and publish it as a coffee table book after leaving office.

[...]

If Trump was convinced of his right to “DECLARE PERSONALLLLL” like Michael Scott in The Office, he could have marched into the federal courthouse and, citing the “Socks Case,” asked a judge to quash the subpoena for all the classified documents in his possession. Instead he took steps to secretly remove documents from the boxes of his presidential records, and then induced his attorney to sign a false declaration saying that he’d complied with the court order — hardly a ringing endorsement of Fitton’s theory.
...but hey, do what you want...you will anyway.

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