Thanks to judicial precedent, Trump will likely have his indictment on having classified records in his Mar-a-lago home dismissed or acquitted if it goes to trial.
Thanks to Tom Fitton of Judicial Watch that precedent can be found in a FOIA request by Judicial Watch back in 2010. Take a look.
The “Clinton Sock Drawer” case, litigated by JudicialWatch
The shows how the Justice Department and the National Archives did an about face and ignored precedent and their own prior legal positions in targeting Trump over records that he had an unconditional right to have under the Presidential Records Act and the US Constitution. In 2010, Judicial Watch submitted a Freedom of Information Act request to Clinton Library and Presidential Museum, seeking access to the Clinton audiotapes from his time as President. The Obama National Archives (NARA) responded that the audiotapes are personal records and therefore not subject to the Presidential Records Act or FOIA.
Judicial Watch subsequently sued and requested that the Court to declare the audiotapes to be Presidential records and, because they are not currently in the government’s possession, to compel NARA to assume custody and control over them. Judge Amy Berman Jackson of the U.S. District Court for the District of Columbia ruled against Judicial Watch. In doing so, she explained: “Under the statutory scheme established by the PRA, the decision to segregate personal materials from Presidential records is made by the President, during the President’s term and in his sole discretion, see 44 U.S.C. § 2203(b), so [NARA] could not make . . . a classification decision” different from that of President.
“Since the President is completely entrusted with the management and even the disposal of Presidential records during his time in office, 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.” “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.’” “Plaintiff contends that its factual allegations about the nature and substance of the audiotapes clearly establishes them to be Presidential records, regardless of how they were treated by President Clinton.
The Court is not so sure. But even if the Court were inclined to agree with plaintiff’s reassessment of President Clinton’s decision, it would not alter the conclusion that the injury cannot be redressed: the 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. While the plaintiff casts this lawsuit as a challenge to a decision made by the National Archives, the PRA makes it clear that this is not a decision the Archivist can make, and in this particular case, it is not a decision the Archivist did make because President Clinton’s term ended in 2000, and the tapes were not provided to the Archives at that time.”
Background: While in office, President Clinton enlisted historian Taylor Branch to assist him in creating an oral history of his eight years in office by recording 79 audiotapes that preserved not only President Clinton’s thoughts and commentary on contemporaneous events and issues he was facing as president, but, in some instances, recorded actual events such as presidential telephone conversations.
For example, the audiotapes contained the following content: President Clinton contemplating potential changes to his cabinet, including whether to fire CIA Director R. James Woolsey, Jr. and whether to nominate Madeleine Albright for Secretary of State; President Clinton’s thoughts and reasoning behind foreign-policy decisions such as the United States’ military involvement in Haiti and the contemplated relaxation of the United States’ embargo of Cuba; President Clinton’s side of telephone conversations with foreign leaders, members of the United States Senate, and cabinet secretaries; President Clinton speaking to several members of the United States Senate in which President Clinton attempted to persuade the Senators to vote against a specific amendment before the Senate; President Clinton’s side of a telephone conversation with Congressman William Natcher of Kentucky in which President Clinton explained his reasoning for entering into the North American Free Trade Agreement based on technical forecasts that he received during presidential briefings; and President Clinton’s side of a telephone conversation with U.S. Secretary of State Warren Christopher concerning a diplomatic impasse over Bosnia. President Clinton took these audiotapes with him when he left office.
He did not turn them over to the National Archives and Records Administration. Any indictment alleging “unlawful retention” of classified or national defense information is at odds with the Presidential Records Act, court precedent and the prior DOJ position on presidential prerogatives on records.
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