Jack Smith's Espionage Act Charges, Part 5: Broken Record
Material excluded from the definition of "presidential records"
Can Jack Smith prove the “obvious,”1 that “the charged documents are indisputably presidential”2 (and government property by statutory definition)3 or is his premise contestable? The Presidential Records Act assigns the U.S. government ownership only of those White House documentary materials qualifying as “presidential records.”4 The Act does not claim public ownership of excluded materials like copies and personal records. Both Smith5 and Robert Hur6 accept that Presidents retain ownership of “personal records.”
The Department of Justice and other government agencies have advanced arguments based on such distinctions in other situations. When the district court was calculating just compensation for Congress’ seizure of Nixon’s White House papers through the Presidential Recordings and Materials Preservation Act, the government maintained that it owed Nixon’s estate nothing for extra copies of documents and other items falling outside the definition of “Presidential historical materials.”7 The government considers that documents that can be sent back from the White House to an executive department (like the Crossfire Hurricane binder Mark Meadows dropped of at the Justice Department on January 20, 2021)8 not to be “presidential records.”
Based on the “assertion that the tapes were not federal records,” the CIA argued that federal records law permitted destruction of interrogation videotapes.9 According to the letter closing the case from an unpersuaded NARA functionary, the CIA took the position that “the videotapes were not Federal records as defined by the Federal Records Act once the information on the videotapes was documented in other recordkeeping systems.”10
The Solicitor General’s Office saw no legal impediment to the State Department transferring ownership of non-record telephone summaries to Henry Kissinger,11 though both Kissinger’s lawyer12 and a footnote in Stevens’ partial dissent and partial concurrence13 indicate the summaries included classified information.
According to the Superseding Indictment, Trump “regularly received a collection of classified intelligence from the United States Intelligence Community (''USIC") known as the ''President's Daily Brief.””14 In 2007, the Public Interest Declassification Board revealed that “[t]he President’s Daily Brief (PDB), which is prepared each day by the CIA, has not been retained as part of the records of the White House since the beginning of the Reagan administration.”15
With respect to Trump’s PDB, “[t]he book was published in only one version”16 and was available in electronic form or hard copy: “While Trump (and Pence) did not choose to use the tablet computer, most of the 40-plus officials who received the PDB early in his administration did.”17
NARA’s FAQ offers “one-of-a-kind” guidance to staff unsure as to whether they have a “recordkeeping copy” on their hands: “[o]ne-of-a-kind in today’s electronic world often means it’s a print-out with handwritten notes, handwritten material, or a hard copy with no corresponding electronic source file(s).”18 Don Lueders argues that, under records guidelines, printouts of digitally generated records will usually be non-record material.19
Press revelations,20 Hur’s Report,21 antiquated regulations from the Vice President’s office,22 and accounts of former staff23 and officials24 indicate that destruction of classified materials is a normal practice at the White House and the Naval Observatory.25 Regarding secret documents, Pence said: “They went in commonly into what was called a burn bag that my military aide would gather and then destroy those classified materials—same goes in materials that I would receive at the White House.”26
The PRA provides that “[t]he duties and responsibilities of the Vice President, with respect to Vice-Presidential records, shall be the same as the duties and responsibilities of the President under this chapter.”27 “Because the PRA presumes that all Presidential records must be permanently preserved and transferred to the National Archives” and “the White House saves all Presidential records, with the exception of some publicly received bulk mail correspondence,”28 methodical use of burn bags is a prime indicium of “non-record material.” The PRA does not assign ownership of non-record White House documentary material to the United States.
Whatever can lawfully be tossed in a burn bag on the spot is not a “record” at all. A President wishing to destroy “presidential records” must notify the archivist.29 Likewise, ”no Federal records may be destroyed except under the authorization of a records disposition schedule approved by the Archivist of the United States.”30 Woland’s aphorism on manuscripts in The Master and Margarita has an analog in the federal statutes: records don’t burn.
Government’s Opposition To Donald J. Trump’s Motion To Dismiss The Indictment Based On The Presidential Records Act, 3/7/24, p. 2: “Although it is not necessary to resolve that issue for the Government to prove the charges under Section 793(e)— because categorizing a classified document as “personal” does not make retention of the document “authorized” under Section 793(e)—if it were necessary, determining that the documents at issue are presidential, not personal, is obvious and well within judicial competence.”
Government’s Opposition To Donald J. Trump’s Motion To Dismiss The Indictment Based On The Presidential Records Act, 3/7/24, p. 1: “Second, the charged documents are indisputably presidential, not personal, and Trump offers no basis to conclude otherwise.”
44 U.S.C. § 2202: “Ownership of Presidential records
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.”
Government’s Opposition To Donald J. Trump’s Motion To Dismiss The Indictment Based On The Presidential Records Act, 3/7/24, p. 10 [bolding added]: “Personal records, which are documents “of a purely private or nonpublic character which do not relate to or have an effect upon” presidential duties, id. § 2201(3), are not the United States’ property.”
Hur Report at 193: “In contrast, "[p]ersonal records" remain the property of the former officeholder.”
Griffin v. U.S., 935 F. Supp. 1, 8 (D.D.C. 1995) “Compensation For Materials Excluded From PRMPA Regulations
In the alternative, the government contends that if the Court does not sustain its two defenses, i.e. the Emoluments Clause and the equity argument, the Court should enter partial summary judgment in favor of defendant, holding that the regulatory definition controls for compensation purposes. The regulations exclude a number of categories of materials which may have been located in the White House at the time the Act took effect but which do not constitute "Presidential historical materials" within the context of the Act. The excluded materials are "documentary materials of any type that are determined to be the official records of an agency of the Government; private or personal materials; stocks of publications, processed documents, and stationery; and extra copies of documents produced only for convenience or reference when they are clearly so identified." 36 C.F.R. § 1275.16(a).”
Defendants’ Memorandum Of Points And Authorities In Support Of Their Cross-Motion For Summary Judgment And In Opposition To Plaintiff’s Motion For Partial Summary Judgment at 4 and 5, Solomon v. Garland, et al., No. 23-cv-00759-RJL, (D.D.C. September 7, 2023): “On January 19, 2021, then-President Trump issued a Memorandum concerning a binder of materials related to the FBI’s Crossfire Hurricane investigation. These were federal records that DOJ had provided to the White House at the President’s request.“ (p. 4)
“The records that then-Chief of Staff Meadows transferred back to DOJ—consistent with “routine practice for agency records that are undergoing declassification or similar review by other agencies or the White House,” Email from Gary Stern to Kash Patel (Aug. 17, 2022), Pl.’s Mot., Ex. 2, ECF No. 16-4, at 1—have properly remained with DOJ as agency records subject to the Federal Records Act.” (p. 5)
Burn After Viewing: The CIA’s Destruction of the Abu Zubaydah Tapes and the Law of Federal Records, Douglas Cox, Journal of National Security Law and Policy, Vol. 5 No. 1, 2011, p. 132: “This article examines the legal arguments underlying the CIA’s assertion that the tapes were not federal records, an assertion which, despite its considerable significance, has thus far gone largely unexamined.”
Oral argument, Kissinger v. Reporters Committee for Freedom of the Press, 10/31/79, p. 40: “With respect to the question of whether or not these were personal property when created, we believe that the legal adviser was incorrect. We believe that those were the property of the agency. We do, however, accept that part of the legal adviser’s opinion which seemed to say that at the end of the usefulness of those notes, after the extracts were prepared, if they were properly prepared, then because they would be non-record material under the records management program, the agency would be free to dispose of that property by allowing Dr. Kissinger to retain it.”
Oral argument, Kissinger v. Reporters Committee for Freedom of the Press, 10/31/79, pp. 8-9: “In that opinion, the legal adviser considered the agency regulations, government practice and then analogous judicial opinions, and he concluded that "these particular papers are personal and may be retained by you when you leave office." But as a precaution to assure that the government’s records were complete, the legal adviser recommended that Dr. Kissinger review and make extracts of any discussion of significant policy decisions or actions not otherwise reflected in the official files, and this was done.
Now, Dr. Kissinger donated all of the papers subject to deeds of gift which restrict access to the collection and these restrictions were designed to protect the classified information in the notes and the other records and the privacy rights.”
Kissinger v. Reporters Committee,, 445 U.S. 136, 162 n.2 (1980): “Also, it is not clear how many of the summaries, even if subject to FOIA, would be exempt from production because they contain either classified or purely personal information. See 5 U.S.C. § 552 (b)(1) and (b)(6).”
Superseding Indictment ¶ 20, United States v. Trump, et al., No. 23-cr-80101 (S.D. Fla. July 27, 2023)
see also Government’s Opposition To Donald J. Trump’s Motion To Dismiss Counts 1-32 Based On Unconstitutional Vagueness, 3/7/24, p. 2 and Government’s Opposition To Donald J. Trump’s Motion To Dismiss The Indictment Based On The Presidential Records Act, 3/7/24, pp. 2-3: “The Superseding Indictment alleges that…Trump…regularly received classified intelligence as part of the “President’s Daily Brief.””
Getting to Know the President, Fourth Edition: Intelligence Briefings of Presidential candidates and Presidents-elect, 1952– 2016, Center for the Study of Intelligence, Central Intelligence Agency, 2021, p. 265 [emphasis added]: “On most days, Trump’s PDB comprised three one-page items describing new developments abroad, plus brief updates of ongoing crises in the Middle East. Later in Trump’s tenure, the guidelines were eased and most items ran on to a second page. The book was published in only one version.”
Getting to Know the President, Fourth Edition: Intelligence Briefings of Presidential candidates and Presidents-elect, 1952– 2016, Center for the Study of Intelligence, Central Intelligence Agency, 2021, p. 266
Burn Bags and Tracking Numbers: How the White House Handles Classified Files, Michael D. Shear, 1/30/23: “After the briefing is completed, the aide is supposed to pack the binder in the locked bag and take it back to the intel shop, where its return would be logged and — in most cases — the documents would be placed into “burn bags” and later destroyed, according to several people familiar with the process.”
Something horribly failed.’ How did so many of America’s secrets end up at Mar-a-Lago?, Sarah D. Wire, 9/8/22: “Classified information would be secured in specialized safes, the SCIF or returned to the agency that created it. Copies that weren’t marked with notes by the president or his staff might also be placed in burn bags and destroyed.”
Hur Report, p. 45: “We were unable to determine whether these materials were ever recovered, although they were likely found and disposed of by military aides or naval enlisted aides.”
On the subject of Reagan’s post-presidential classified briefings in California, see also, p. 197: “Notably, Secret Service agents collected daily intelligence briefing materials after Mr. Reagan had finished with them and ensured that they were properly destroyed.”
32 CFR 2800.4(h)(8): “Destruction of Classified Material.” 32 CFR Part 2800—Security Procedures, 44 FR 66591 (November 20, 1979) was published over a year after the PRA was signed and 14 months before it took effect.
Select Committee To Investigate The January 6th Attack On The U.S. Capitol, U.S. House Of Representatives, Continued Interview Of: Cassidy Hutchinson, 5/17/22, p. 41: “So there is -- every administration has something called burn bags, and there's -- I forget the different levels of them, but you're not supposed to put any paper in the trash cans. They're all supposed to go in burn bags. There's regular burn bags, and then there's different classifications if there's classified material. There's top secret and those are normally just from NSC.
So Mr. Meadows did use his burn bags as most staff do. All staff at the White House do on campus. And I believe - - I mean, it's standing protocol, I believe, for previous and future administrations too for record keeping purposes.”
Transcript of Interview with Ben Rhodes, The Last Word with Lawrence O'Donnell, 10/4/22: “So, Lawrence, for eight years, I had access to the presidential daily briefing, right? So, the highest security clearance in the U.S. government.
If I had a meeting in the Situation Room where they passed out documents or classified, or there was a pre-read that we all got that was classified, at the end of that meaning [sic], those documents would be collected and destroyed. In my office, I would get the presidential daily briefing, I get all kinds of intelligence reports, at the end of the day, I had a burn bag, literally a bag -- not a trash can, that I would place those documents and, and in a uniformed security agent would come to my office, collects documents, and burn them, right?”
Mike Pence 'troubled' by reports Biden's alleged mishandling of classified docs was known before election, Maria Lencki, 1/12/23: “”Early in the morning, I received a presidential daily brief at the vice president's residence," he recalled, "I'd rise early. I'd go to the safe where my military aide would place those classified materials. I'd pull them out, review them. I'd receive a presentation (on) them and then, frankly, more often than not…I would simply return them back to the file that I'd received them in. They went in commonly into what was called a burn bag that my military aide would gather and then destroy those classified materials—same goes in materials that I would receive at the White House.””
Statement of David S. Ferriero, Archivist of the United States, in Presidential Records In The New Millennium: Updating The Presidential Records Act And Other Federal Recordkeeping Statutes To Improve Electronic Records Preservation, Hearing Before The Committee On Oversight And Government Reform, 5/3/11
“Because the PRA presumes that all Presidential records must be permanently preserved and transferred to the National Archives at the end of the president's administration, the act allows for comparatively straightforward records management policy; that is, the White House saves all Presidential records, with the exception of some publicly received bulk mail correspondence, where a sampling is saved, and all Presidential records are transferred to NARA when the president leaves office.”