Megyn Kelly hosted Mike Davis on her podcast to discuss the Jack Smith documents case in Florida. Jack Smith wants to persecute Donald Trump using Barack Obama’s executive order, which is not legally binding in lieu of the Presidential Records Act because the latter destroys Smith’s case.
Megyn Kelly told Davis, “Kudos to you for driving the main defense, which now has persuaded this judge, at least in part. You’ve called this, really. I remember this cause we were all kind of confused about the Presidential Records and you came out swinging. I didn’t know you. I was like, who is this guy? He’s brilliant. Listen to this argument he had. You spelled it all out. People mocked you…”
The Sock Drawer Case
“People say that I’m crazy,” Davis said, “but I tend to be right. And I would say this, that I didn’t make up this legal theory. This was a 2012 decision by an Obama judge – Judge Amy Berman Jackson when President Clinton had eight years, 79 tapes of audio recordings in his sock drawer.
“These audio recordings were recorded by the White House Deputy Chief of Staff for Operations. So they’re definitely White House records. And there were recordings of President Clinton’s conversations with his national security officials, his foreign leaders, many other highly classified or… the most classified secrets imaginable, the process of the president on national security matters.”
“When Tom Fitton of Judicial Watch sued for these records, that’s where we got the Clinton sock drawer case in 2012. But this judge said ...there are presidential records that belong to the government, but the president can access them anytime he wants.
“He can have his records anytime he wants, even if the government owns them or they could be personal records. And the mere fact that President Clinton took these highly classified recordings out of the White House with him and did not turn them over to the archives when he left office deemed them personal under the Presidential Records Act.
“You may not like that ruling, you may think that ruling is incorrect, but that is the ruling of that 2012 judge, and Judge Cannon is following that precedent.”
Hey, we didn’t make the rules, the Clintons did. We just follow ‘em. https://t.co/s7EwVxnmUE
— Michael R. Caputo (@MichaelRCaputo) April 5, 2024
The media has come out swinging, saying that’s a misreading of the law. However, the precedent was set for Bill Clinton in the sock drawer case, and what’s good for Clinton should be good for Donald Trump. It’s also okay to break the law if you’re an old guy with a bad memory. The dual standard is un-American.
Smith and the media are trying to say the cases can’t be compared, but every President has taken confidential documents and put them wherever they wanted them.
The Wall Street Journal reports:
Although the indictment against Donald Trump doesn’t cite the Presidential Records Act, the charges are predicated on the law. The indictment came about only because the government thought Mr. Trump took records that didn’t belong to him, and the government raided his house to find any such records.
This should never have happened. 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 (Michael Bekesha) who lost the “Clinton sock drawer” case.
…
Judge Amy Berman Jackson agreed [with NARA and the DOJ]: “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.”
I lost because Judge Jackson concluded the government’s hands were tied. Mr. Clinton took the tapes, and no one could do anything about it.
It’s Also True for Donald Trump
The same is true with Mr. Trump. Although he didn’t keep records in his sock drawer, he gathered newspapers, press clippings, letters, notes, cards, photographs, documents, and other materials in cardboard boxes. Then Mr. Trump, like Mr. Clinton, took those boxes with him when he left office. As of noon on Jan. 20, 2021, whatever remained at the White House was presidential records. Whatever was taken by Mr. Trump wasn’t.
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