Jack Smith's Espionage Act Charges, Part 3: "Unauthorized possession" of personal property?
18 U.S.C. § 793(e) and properly categorized "personal records" under the Presidential Records Act
Is Section 793 a license to seize personal property from a private owner or does it just impose criminal penalties for not returning government property? Prior to Congressional action in the mid-1970s, former Presidents owned all their White House papers.1 Neither the Espionage Act, nor executive branch regulations stripped Presidents of that property interest. With the exception of Nixon, whose papers Congress seized through the Presidential Recordings and Materials Preservation Act,2 pre-PRA Commanders-in-Chief “exercised complete dominion and control over their presidential papers.”3 In non-Espionage Act litigation, the DOJ has claimed that Section 793 is one of the laws where “[t]he government’s property right in confidential or privileged information is implicitly acknowledged.”4
Prosecutor David Harbach posits that 793(e) charges could be brought against a former President for “unauthorized possession” of material the Presidential Records Act recognizes as his personal property,5 arguing that the court “should not infer any intention on Congress's part by passing the PRA to imbue all personal records of a former president with a permanent exemption for all time from the classification rules.”6 This theory presupposes that pre-PRA ex-Presidents ran the risk of 793(e) liability for any storage, handling, or use of their own personal property related to the national defense that arguably derogated from executive branch policies.
In a 1978 letter, the Archivist of the United States told Congress, “Harry Truman's and Dwight Eisenhower's most sensitive files were not transferred to custody of the respective library until their respective deaths.”7
The principle that use and possession are inherent property rights8 ought to sink the subsection’s application to those who lawfully “exercised complete dominion and control over their presidential papers.”9 The only limitation on these rights imposed judicially relates to transfer. In Griffin v. U.S., the district court accepted the government’s argument against compensating Nixon’s estate for classified materials,10 determining that an executive order forbade transfer “to a member of the public.”11
While the Supreme Court has stated that “[i]t should be obvious that no one has a "right" to a security clearance,”12 it also found in Youngstown that the President’s constitutional powers did not extend to seizing steel mills, concluding that whether ”to take possession of private property in order to keep labor disputes from stopping production…is a job for the Nation's lawmakers.”13
The legislature, not the executive, used the federal eminent domain power in the PRMPA and then modified ownership of White House documentary material in the PRA.
In the Atomic Energy Act of 1946, Congress seized fissionable material in Section 5(a)(2) and revoked patents with uniquely military application in Section 11(a)(1), providing for “just compensation” in either case. In Section 5(a)(2), Congress specified that, with respect to individuals deprived of ownership, the Atomic Energy Commission could “authorize any such person to retain possession of such fissionable material, but no person shall have any title in or to any fissionable material.”
A 1948 Report of a Judicial Conference Advisory Committee lists Sections 5, 11, and 13 of the Atomic Energy Act of 1946 (which were codified at 42 U.S.C. §§ 1805, 1811, and 1813 at the time)14 among statutes that authorize eminent domain.15 The Advisory Committee does not list Section 10 of the Atomic Energy Act of 1946, which created the still extant “restricted data” designation, nor 50 U.S.C. § 31(d), the forerunner to 793(d).
The Presidential Records Act imposed a use test rather than a content test for diaries and journals, which remain “personal records” as long as they “are not prepared or utilized for, or circulated or communicated in the course of, transacting Government business.”16
In General Motors, the court wrote, “When the sovereign exercises the power of eminent domain it substitutes itself in relation to the physical thing in question in place of him who formerly bore the relation to that thing, which we denominate ownership.”17
“In relation to” properly categorized “personal records,” the PRA does not put the government in a departing President’s place. A post-PRA President’s place in relation to his “personal records” is the same as that of earlier Presidents in relation to their entire White House archive. Ruling out Section 793(e)’s application to Truman, Eisenhower, and Ford would make the subsection a non-starter not only for Reagan’s diary but for any materials that do not correspond to the PRA’s definition of “presidential records,” the only category of material the Act claimed as public property.
Nixon v. U.S., 978 F.2d 1269, 1287 (D.C. Cir. 1992): “By virtue of mutually explicit understandings arising from a tradition of presidential ownership of White House papers, Mr. Nixon acquired a property interest in his presidential papers. PRMPA, which unquestionably denies Mr. Nixon the most important attributes of property ownership, effected a per se taking of that property. Thus, the constitutional remedy of just compensation is required and this case must be remanded to the District Court for a determination of compensation due.”
Nixon v. U.S., 978 F.2d 1269, 1287 (D.C. Cir. 1992)
Nixon v. U.S., 978 F.2d 1269, 1277 (D.C. Cir. 1992): “History, custom, and usage indicate unequivocally that, prior to PRMPA, Presidents exercised complete dominion and control over their presidential papers.19 It is uncontroverted that every President before and after President Nixon assumed control of his presidential ("White House") papers upon departing office.”
The opinion’s statement at 1277 n.19 that “Congress prospectively abolished presidential ownership of White House materials with the Presidential Records Act, 44 U.S.C. § 2201 et seq.” does not appear to take account of the Act’s specific exclusion of certain White House materials including diaries from the definition of “presidential records.”
Defendant’s Motion For A Protective/Sealing Order And For Return Of Federal Documents at 4, Citizens for Responsibility and Ethics in Washington v. U.S. Department of Justice, No. 1:05-cv-02078-EGS (July 7, 2006): “The government’s property right in confidential or privileged information is implicitly acknowledged in the criminal statutes which prohibit the misuse or mishandling of such information. See, e.g., 18 U.S.C. §§ 793 (information relating to national defense); 794 (same); 798 (classified information concerning codes); 952 (diplomatic codes and correspondence); 50 U.S.C. § 783 (communication of classified information to foreign government).”
Transcript Of Motions To Dismiss at 125, United States v. Trump, et al., No. 23-cr-80101 (S.D. Fla. March 14, 2024) [emphasis added]:
THE COURT: But what if it's not even in the form of willfulness? It's just as a matter of law, these things are personal according to our designation and, therefore, not unauthorized, then what is your position on that?
MR. HARBACH: Okay. That implicates the second part of the argument, or the second of the three points I was mentioning earlier, which is even if they are personal, does that have anything to do with whether they are authorized under 793? And we say no.
Transcript Of Motions To Dismiss at 126, United States v. Trump, et al., No. 23-cr-80101 (S.D. Fla. March 14, 2024) [emphasis added]:
“The Presidential Records Act says zero, zip about classified information, who is permitted to access it, retain it, and so forth. Both sides agree on that. The question is: What is the inference to be drawn from Congressional silence on the subject?
I'm not totally clear what the -- what the other side says it means, but I will tell you what we say it means. We say it means that the Court should not infer from silence on Congress's part an intention to disturb the framework governing the handling of classified information that was in place at the time the PRA was passed.
In other words, you should not infer any intention on Congress's part by passing the PRA to imbue all personal records of a former president with a permanent exemption for all time from the classification rules.”
Submission to Additional Subcommittee Questions, p. 171, available in Presidential Records Act of 1978 (Hearings before a Subcommittee on Government Operations, House of Representatives) (pp. 164-72)
Loretto v. Teleprompter Manhattan CATV Corp., 458 U.S. 419, 435 (1982) “Property rights in a physical thing have been described as the rights "to possess, use and dispose of it." United States v. General Motors Corp., 323 U.S. 373, 378 (1945).” [cited in Horne v. Department of Agriculture, 576 U.S. 350, 361-62 (2015): “Raisin growers subject to the reserve requirement thus lose the entire "bundle" of property rights in the appropriated raisins—"the rights to possess, use and dispose of" them, Loretto, 458 U.S., at 435, 102 S.Ct. 3164 (internal quotation marks omitted)—with the exception of the speculative hope that some residual proceeds may be left when the Government is done with the raisins and has deducted the expenses of implementing all aspects of the marketing order.”]
Nixon v. U.S., 978 F.2d 1269, 1277 (D.C. Cir. 1992): “History, custom, and usage indicate unequivocally that, prior to PRMPA, Presidents exercised complete dominion and control over their presidential papers.”
Griffin v. U.S., 935 F. Supp. 1, 9 (D.D.C. 1995): “The government also contends that plaintiffs should not be compensated for the "national security council files" or other classified materials that Court of Appeals held were "taken" under the Act. The government reasons that those materials could not have been transferred nor sold to members of the public when the Act became effective, so there was no market for them. Thus, if there was no market for them, they could not have a fair market value as a matter of law.”
Griffin v. U.S., 935 F. Supp. 1, 9 (D.D.C. 1995): “Here, the taking occurred on the day the PRMPA became effective. At that time, the national security materials were classified and subject to executive orders which would not allow a President to transfer ownership of them to a member of the public without violating the law.”
Department of Navy v. Egan, 484 U.S. 518, 528 (1988)
Youngstown Co. v. Sawyer, 343 U.S. 579, 587 (1952): “Even though "theater of war" be an expanding concept, we cannot with faithfulness to our constitutional system hold that the Commander in Chief of the Armed Forces has the ultimate power as such to take possession of private property in order to keep labor disputes from stopping production. This is a job for the Nation's lawmakers, not for its military authorities. Nor can the seizure order be sustained because of the several constitutional provisions that grant executive power to the President. In the framework of our Constitution, the President's power to see that the laws are faithfully executed refutes the idea that he is to be a lawmaker.”
1948 Report of the Advisory Committee, printed as a note to Rule 71A Rules of Civil Procedure for the United States District Court as amended to December 31, 1958, Appendix to Title 28, p. 5195 (p. 93 of pdf)
United States v. General Motors Corp., 323 U.S. 373, 378 (1945)