Trump Just Used 1 Genius Legal Defense Strategy The Clintons Will Be Furious About

OPINION:  This article contains commentary which may reflect the author’s opinion

This week, Donald Trump used his Truth Social platform to call attention to a prior, comparable instance involving the holding of information by Bill Clinton, a different former president.

Trump mentioned the “Clinton sock drawer” case that was litigated years ago by legal watchdog group Judicial Watch in a speech to supporters at his Bedminster, New Jersey, golf club following his appearance in a Miami federal courtroom on Tuesday after being indicted on 37 counts related to his handling of classified materials.

He referred to a Wall Street Journal story by attorney Michael Bekesha, who claimed that under the Presidential papers Act, a president “chooses what records to return or keep and the National Archives can’t do anything about it.”

“The Presidential Records Act allows the president to decide what records to return and what records to keep at the end of his presidency. And the National Archives and Records Administration can’t do anything about it. I know because I’m the lawyer who lost the ‘Clinton sock drawer’ case,” Bekesha wrote in the Journal.

“In 2009, historian Taylor Branch published “The Clinton Tapes: Wrestling History With the President.” The book is based on recordings of Mr. Branch’s 79 meetings with Bill Clinton between Jan. 20, 1993, and Jan. 20, 2001,” he continued. “According to Mr. Branch, the audiotapes preserved not only Mr. Clinton’s thoughts on issues he faced while president, but also some actual events, such as phone conversations.”

The meetings between President Clinton and Mr. Branch were arranged by the White House, and the audiotape production was managed by Nancy Hernreich, who was the director of Oval Office operations at the time.

“Did that make them presidential records?” Bekesha enquired.

The recordings were not delivered to the National Archives and Records Administration. Branch claims that in order to keep the recordings from becoming public, Clinton kept them hidden in his sock drawer and carried them with him when he left office.

“My organization, Judicial Watch, sent a Freedom of Information Act request to NARA for the audiotapes. The agency responded that the tapes were Mr. Clinton’s personal records and therefore not subject to the Presidential Records Act or the Freedom of Information Act,” the attorney wrote.

“We sued in federal court and asked the judge to declare the audiotapes to be presidential records and, because they weren’t currently in NARA’s possession, compel the government to get them,” he added.

The National Archives and Records Administration (NARA) was supported by the Justice Department on the grounds that NARA is not required to continuously look for prospective presidential records that have not been turned in by the president at the end of their tenure.

The government made the claim that the Presidential Records Act does not impose on NARA “a duty to engage in a never-ending search for potential presidential records.” The government’s position is that Congress decided that the president has the power to decide which records count as presidential and retains the ability to take any records they choose with them when they leave office.

The case was heard by U.S. District Judge Amy Berman Jackson, who concurred: “Since the President is completely entrusted with the management and even the disposal of Presidential records during his time in office,” she held, “it would be difficult for this Court to conclude that Congress intended that he would have less authority to do what he pleases with what he considers to be his personal records.”

Judge Jackson added that “the PRA contains no provision obligating or even permitting the Archivist to assume control over records that the President ‘categorized’ and ‘filed separately’ as personal records. At the conclusion of the President’s term, the Archivist only ‘assumes responsibility for the Presidential records.’ . . . 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.”


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