TRUMP HAS GOVERNMENTAL IMMUNITY UNDER THE PRESIDENTIAL RECORDS ACT

ABSTRACT

The Presidential Records Act has been mentioned on a few occasions regarding the search and seizure of former President Trump’s home, but no one yet on the mainstream media has analyzed the most important provisions of the Act.  The Act clearly gives former Presidents immunity for possession of Presidential Records, and Presidential Records include all classified records.  A former President cannot be lawfully charged with unlawful possession of government documents that are part of his Presidential records. That is what happened to former President Trump. The result of former President Trump’s immunity is that the Federal Courts have no criminal jurisdiction, the criminal investigation of him should be enjoined, and the government ordered to return his records which were unlawfully seized.

LAW AND ARGUMENT

A former President has both criminal and civil governmental immunity regarding Presidential Records under the Presidential Records Act, 44 U.S. Code § 2205(3) – Exceptions to restricted access. The applicable language of this provision states:

[T]he Presidential records of a former President shall be available to such former President or the former President’s designated representative.

The title of that provision of the Act, “Exceptions to Restricted Access,” clearly implies that a former President has the right to have access to the Presidential Records, and he has this right of access of his own volition or on his own demand.

44 U.S. Code § 2205(3) does not say the President’s records shall be made available, or available on request. It says “shall be available.” Congress has given a former President the right to take Presidential records when the President leaves office without having to obtain permission from the National Records Archivist.  The words “shall be made available” or “available on request” would indictate permission is required from somebody, but they are not used.

Presidential Records are defined under the Act in 44 U.S. Code § 2201 (2) thusly:

(2) The term “Presidential records” means documentary materials, or any reasonably seg­regable portion thereof, created or received by the President, the President’s immediate staff, or a unit or individual of the Executive Office of the President whose function is to advise or assist the President, in the course of conducting activities which relate to or have an effect upon the carrying out of the constitutional, statutory, or other official or ceremonial duties of the President.

Thus, even any classified documents which are “received” by the President are Presidential records because classified documents relate to and have an effect upon the carrying out of the constitutional, statutory and other official … duties of the President.  The Presidential Records Act “distinguishes Presidential records from “personal records,” Judicial Watch, Inc. v. National Archives and Records Administration, 845 F. Supp.288, 291.  No one would seriously argue that classified records are personal records.

There is further statutory evidence within the Presidential Records Act to support the interpretation of access of his own volition or demand to Presidential Records, and of a President’s right to take Presidential Records with him when he leaves office.

44 U.S. Code § 2203(g) (1) states:

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.

The requirement that the Archivist “assume responsibility for the custody…of … the Presidential Records” is not synonymous with actual possession.  One can assume responsibility for something one does not actually possess.

But more importantly, 44 U.S. Code § 2112 (c) states:

The Archivist, in negotiating for the deposit of Presidential historical materials, shall take steps to secure to the Government, as far as possible, the right to have continuous and permanent possession of the materials.

Note the Archivist has to negotiate for the “deposit” of the Presidential Records. The Archivist must initiate the negotiations to secure to the “Government … possession of the materials.”  This provision implies that the former President is expected to take the Presidential documents when he leaves and then is expected to negotiate with the Archivist about how to deposit them. That is the statutory scheme.

There is nothing in the Act that requires the former President to do anything with his Presidential records other than to negotiate with the Archivist for their deposit in the National Archives. 

What can the Archivist do if the former President refuses to negotiate for the deposit of records?   Can the Archivist refer the matter to the Attorney General for recovery, which is what happened according to the warrant’s affidavit?

The Court in Judicial Watch, cited 44 U.S. Code § 2905(a), for the proposition that the Archivist can refer a matter under the Presidential Records act to the Attorney General for recovery of records. Id at 292. But the full text of the provision indicates that is not applicable to the Presidential Records Act.  The provision only applies to recovery by the Archivist of records in the custody of a Federal agency.  There is no Federal agency involved in this matter.  Here is the full text of the provision:

The Archivist shall notify the head of a Federal agency of any actual, impending, or threatened unlawful removal, defacing, alteration, or destruction of records in the custody of the agency that shall come to the Archivist’s attention, and assist the head of the agency in initiating action through the Attorney General for the recovery of records unlawfully removed and for other redress provided by law. In any case in which the head of the agency does not initiate an action for such recovery or other redress within a reasonable period of time after being notified of any such unlawful action, the Archivist shall request the Attorney General to initiate such an action, and shall notify the Congress when such a request has been made.

So the referral was improper.

Finally, proper jurisdiction is in the United States District Court for the District of Columbia, when an action is brought by the former President against the Archivist, for assertions of Presidential rights or privileges: 44 U.S. Code § 2204(e) states:

The United States District Court for the District of Columbia shall have jurisdiction over any action initiated by the former President asserting that a determination made by the Archivist violates the former President’s rights or privileges.

Interestingly, no statute specifies where the Archivist can bring an action against the former President.  But given the fact that there is no apparent right by the Archivist for a referral to the AG, no such provision would be expected. If a former President were sued elsewhere, since he would undoubtedly be claiming rights and privileges, that would be the only court with proper jurisdiction.

Finally, there is a Constitutional question as to certain critical provisions of the Act, specifically the following two provisions:

44 U.S. Code § 2202 states:

The United States shall reserve and retain complete ownership, possession, and control of Presidential records….

And 44 U.S. Code § 2203(a) which states:

Through the implementation of records management controls and other necessary actions, the President shall take all such steps as may be necessary to assure that the activities, deliberations, decisions, and policies that reflect the performance of the President’s constitutional, statutory, or other official or ceremonial duties are adequately documented and that such records are preserved and maintained as Presidential records pursuant to the requirements of this section and other provisions of law.

Article 2, Section 2, Clause 2, of the United States Constitution states:

[The president] may require the Opinion, in writing, of the principal Officer in each of the executive Departments, upon any Subject relating to the Duties of their respective Offices….

This Constitutional “Presidential records” clause has never been litigated by the Supreme Court.  It is clearly discretionary on the part of the President as to whether to require an opinion from his principal officers in writing.  It would certainly appear that § 2203(a) which requires the President to adequately document all official matters, is in conflict with the “Presidential records” clause, which leaves it to the President’s discretion as to whether to require opinions in writing.  Moreover, if these writings are generated at the President’s request under the Constitution, shouldn’t the President have the ownership and possession rights with respect to them?  It would seem that the Government’s claim to ownership and possession is based on its claim that it has the right to require the President to make them. 

Does Congress have the right to take a President’s ownership and possession rights away?  Under the Constitution, they should be his; not the Government’s, unless he gifts these records to the Government, which of course most Presidents would be expected to do.

CONCLUSION

The Presidential Records Act gives a former President immunity against a charge of unlawful possession of governmental documents.  As a result, the Federal Courts have no criminal jurisdiction in a case charging a former President with unlawful possession of governmental records. Former President Trump’s criminal investigation should be enjoined and his records returned.