Jack Smith's Espionage Act Charges, Part 7: Copy Klatsch
In at least two cases, the government has presented arguments that turn on non-record status or a copy exclusion. The district court charged with setting the amount Nixon’s estate was owed for his Presidential papers indicated that the government maintained no compensation was due for materials falling outside the definition of “Presidential historical materials.”1 Extra copies were among the materials the government sought to exclude and the court granted the request on the grounds the plaintiffs had adduced no counterarguments.2 In Kissinger, the Supreme Court accepted the primary argument from Kissinger’s counsel and the Solicitor General’s Office and consequently refrained from deciding the record status of State Department telephone notes or summaries3 Kissinger had donated to the Library of Congress. Acknowledging its backup argument envisioned further fact-finding on remand, the Solicitor General’s Office averred that the State Department’s determination of record or non-record status should control,4 without prejudging the agency’s decision.5 The Solicitor General’s office suggested that, as long as Lawrence Eagleburger’s extracts from the summaries6 captured all the items that ought to be in the department’s archives, there would be no legal impediment to the State Department categorizing the telephone summaries as non-record material and transferring ownership of them to Kissinger.7 Classified information was in the donated summaries according to both Kissinger’s lawyer8 and a footnote in Stevens’ partial dissent and partial concurrence.9
While Margot Cleveland emphasized the copy question during the Special Master litigation,10 Trump’s lawyers made what I believe was their first reference to the Presidential Records Act’s copy exclusion in a reply brief filed the day before the hearing on two motions to dismiss:
For example, in addition to excluding “personal records,” the PRA’s definition of “Presidential records” does not include “official records of an agency” or “extra copies of documents . . . .” 44 U.S.C. § 2201(2)(B). Surely no one from, for example, the National Security Council or the Intelligence Community left individual original documents in the Oval Office following briefing to President Trump and failed to retrieve the documents before the end of President Trump’s first term.11
There was a second brief mention at oral argument the following day12 and now the defense’s proposed instruction on “authorized possession”13 asks that jurors be told keeping copies was not unauthorized:
The term “Presidential record” does not include extra copies of documents produced only for convenience of reference, when such copies were clearly so identified. Therefore, in order for the government to meet its burden of proof on this element, the government must prove beyond a reasonable doubt that the document you are considering was not such a copy. When you are addressing this issue during your deliberations, you should consider the evidence—or lack thereof—surrounding the manner in which the document you are considering was created and handled, including whether and how it was shown to President Trump.14
Rebuttal from the prosecution may emphasize the specificity of the PRA’s copy exclusion (“extra copies of documents produced only for convenience of reference, when such copies are clearly so identified”) and insist that a copy not “clearly so identified” remains a “presidential record.” This presupposes that the PRA is the operative statute. “Clearly so identified“ or similar language is not in the Federal Record Act’s duplicate exclusion.15
One litigant did invoke a 1980 GSA Bulletin’s rules on convenience copies in a doomed attempt to keep a classified report.16 In ruling against the former CIA in-house historian, a federal appellate panel found that the circumstances of the report’s creation, agency regulations, and the historian’s own executed secrecy agreements all proved government ownership.17 None of these grounds disallows ownership of non-record White House documentary material by a former President in the absence of a non-disclosure agreement or similar arrangement. (Trump never executed such an agreement.)18 The 1980 GSA Bulletin had no effect on President Carter’s ownership of his White House documentary materials, nor did a similar clause in a 1976 Bulletin19 dispossess Gerald Ford.
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).”
Griffin v. U.S., 935 F. Supp. 1, 9 (D.D.C. 1995): “The government further contends that extra copies of documents would be excludable from "Presidential historical materials". See 36 C.F.R. § 1275.16(a) ("extra copies of documents produced only for convenience or reference"). Plaintiffs do not specifically respond to these areas in their opposition, instead choosing to address whether compensation is appropriate with respect to national security materials. Accordingly, in view of plaintiffs' lack of response, the Court deems it that they do not oppose the granting of this portion of the government's motion.”
Kissinger v. Reporters Committee, 445 U.S. 136, 147-48 (1980) “Thus if Kissinger's telephone notes were "records" within the meaning of the Federal Records Act, a question we do not reach, then Kissinger's transfer might well violate the Act since he did not seek the approval of the Archivist prior to transferring custody to himself and then to the Library of Congress.”
Oral argument, Kissinger v. Reporters Committee for Freedom of the Press, 10/31/79, pp. 36-8: “Now, this secondary issue would only be reached in the event the Court were to say there is a duty to retrieve documents which are records under the Federal Records Act.
The definition under 33, section 3301 defines a record to be one which is preserved among other things and only to be those things which are preserved or appropriate for preservation as evidence of the organization, functions, policies, decisions, procedures, operations or other activities of the government.
We think the words "appropriate for preservation” there is the key. The District Court underscored that language in its opinion, indicating that it felt that these notes were appropriate for preservation. We think that the legislative history of that section makes it clear that it's the agency, not the courts, which makes the decision whether or not something is appropriate for preservation as a record.
Under the Federal Records Act, the scheme that is contemplated is that agencies will adopt records management programs and they will make the decision in the first instance whether some material should or should not become an agency record and therebyr [sic]— or federal record and thereby subject to the strictures of the Records Disposal Act which prohibit any disposal of such a record without the approval of the archivist.
On the other hand, if it is not designated as a record, it remains non-record material, and even though that is the property of the United States in our view, it is not a federal record.
Now, we believe that the District Court and the courts below disregarded this approach to the act by simply assuming that these documents were records under the Federal Records Act without making an inquiry into the State Department’s regulations to determine whether or not the agency itself had classified them as records on the one hand or non-record materials on the other.
We do agree, however, with the District Court that these documents, when they were created, were not the personal property of Dr. Kissinger but were the property of the agency. They may have been non-record material or they may have been records, but the agency would make that determination by applying its records management program.
If we accept that analysis of the Federal Records Act, we believe that a remand to the District Court would be necessary in order to determine whether or not these particular notes were or were not non-record material or were or were not, to put it conversely, records under the Federal Records Act.”
Oral argument, Kissinger v. Reporters Committee for Freedom of the Press, 10/31/79, pp. 42-3: “The State Department specifically would like to reserve both possibilities and we don’t take a position in this case as to whether or not these are or are not records.”
Reporters Committee for Freedom of the Press v. Vance, 442 F. Supp. 383, 384-85 (D.D.C. 1977): “Dr. Kissinger requested Deputy Undersecretary Lawrence Eagleburger to review all the telephone records, including those compiled during his service at the White House, and to prepare written extracts of "any significant policy decisions or actions not otherwise reflected in the Department's records". These extracts are now filed at the State Department.”
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).”
Transcript Of Motions To Dismiss at 92, United States v. Trump, et al., No. 23-cr-80101 (S.D. Fla. March 14, 2024):
“And, made plain, they either go to NARA -- and if they're not presidential records, that means they're either copies of records, potentially administrative records, or they're personal records. There is no discretionary function.”
Proposed Jury Instructions at 4-9, Exhibit A to Trump’s Response To The Court’s March 18, 2024 Order, United States v. Trump, et al., No. 23-cr-80101 (S.D. Fla. April 2, 2024)
Proposed Jury Instructions at 6-7, Exhibit A to Trump’s Response To The Court’s March 18, 2024 Order, United States v. Trump, et al., No. 23-cr-80101 (S.D. Fla. April 2, 2024)
44 U.S.C. § 3301(a)(1)(b)(ii): “duplicate copies of records preserved only for convenience.”
Pfeiffer v. Central Intelligence Agency, 60 F.3d 861, 864 (D.C. Cir. 1995):
“Pfeiffer argues first that the district court erred in ordering him to return his copy of the report because, under a regulation in effect at the time that he left the CIA, he was allowed to retain a "reference" copy of his work. He points out that the statute concerning the procedure for disposing of federal "records" excludes from the definition of that term "extra copies of documents preserved only for convenience of reference." 44 U.S.C. § 3301. And a GSA Bulletin in effect in 1984 opined that:
[A] Government official may accumulate for convenience of reference extra copies of papers and other materials which he or she has drafted, reviewed, or otherwise acted upon. . . . Government officials may be permitted to retain these extra copies, provided that retention would not (1) diminish the official records of the agency; (2) violate confidentiality required by national security, privacy, or other interests protected by law; or (3) exceed normal administrative economies.
GSA Bull. FPMR B-106 (Oct. 30, 1980). Pfeiffer claims that these provisions justify him in retaining a copy of a report that he prepared and, anticipating the obvious counterargument, that any concern over the confidentiality of the material will be dispelled if only the Agency would do a prepublication review of the document.”
Pfeiffer v. Central Intelligence Agency, 60 F.3d 861, 864-65 (D.C. Cir. 1995): “The provisions that Pfeiffer cites — designed, we note, primarily to prevent the loss to history occasioned by unauthorized destruction of federal records, see, e.g., 44 U.S.C. §§ 2071, 3105 — actually undermine his argument. The GSA Bulletin states only that a government official "may" be allowed to retain copies of his work, and then only subject to the Government's need for the "confidentiality required by national security [etc.]." More important, indeed determinative, is the CIA regulation specifically stating that "information . . . originated, received, or controlled by the Agency . . . in connection with the discharge of official duties . . . may not be copied or removed from the files of the Agency for any purpose except in connection with official business." HR 10-22. Moreover, the report at issue in this case — in both its original form and in the form of Pfeiffer's copy — is indisputably the property of the Government. It was created at government expense, i.e., with government materials and on government time. See Reporters Committee for Freedom of the Press v. Vance, 442 F. Supp. 383, 387 (D.D.C. 1977), aff'd, 589 F.2d 1116 (1978), aff'd in part, rev'd in part as Kissinger v. Reporters Committee for Freedom of the Press, 445 U.S. 136 (1980). If more is needed to establish the Government's ownership, it may be found in Pfeiffer's agreement with the Agency disclaiming any personal property interest in information coming to his attention "by virtue of [his] connection with the [CIA]" and in the CIA regulation expressly asserting the Government's property interest in any report prepared by an employee as part of his official duties. HR 10-22(a).”
Transcript Of Motions To Dismiss at 69, United States v. Trump, et al., No. 23-cr-80101 (S.D. Fla. March 14, 2024):
THE COURT: Okay.
All right. Now, just to be clear, there is no NDA that was signed, of course, by a former president, so you wouldn't have that sort of fact in a case?
MR. BRATT: That's correct.
GSA Bulletin FPMR B-65 § 3(d), GSA Bulletin On Segregation Of Personal Papers And Official Agency Records, 11/15/76, printed as Appendix 19 to Presidential Records Act Of 1978 : Hearings Before A Subcommittee Of The Committee On Government Operations, House Of Representatives, Ninety-Fifth Congress, Second Session, On H.R. 10998 And Related Bills, pp. 722ff.