The Presidential Records Act gives former president Donald Trump the right under law to maintain custody and control of papers, classified or not. That’s the controlling, governing statute. And its civil, not criminal.
In 1978 Congress specifically granted an exclusive right to former presidents to keep presidential papers, including classified documents. The Justice Department not only endorsed it, but their lawyers defended it in court in the Bill Clinton case a decade ago.
The DOJ argued emphatically that former president Clinton was entitled to keep whatever he wanted after leaving office, including tapes with classified information. A federal judge agreed by ruling that the National Archives does not have authority to decide what constitutes presidential records and that seizing them from a former president is “unfounded and contrary to the law.”
Trump relied on that standard, which Attorney General Merrick Garland tossed out the window. He reversed it and chose to criminalize a civil statute. Why? Because it’s Trump. But the Act has no criminal penalty. Therefore, the proper remedy was for Garland to file a civil lawsuit to enforce his subpoena and allow an impartial judge to hash it out. If it happened to be the same Washington judge who handled the Clinton case, she would have ruled in Trump’s favor. That judge would never have allowed a raid on Trump’s home because, as she ruled, seizure is unlawful.
Instead of following the law, Garland manipulated it by commandeering the Espionage Act to criminalize conduct that is not criminal at all. As The Wall Street Journal correctly pointed out, “If the Espionage Act means Presidents can’t retain any classified documents, then the PRA is all but meaningless.” In other words, that was the purpose of the Records Act —to carve out a special privilege for former presidents.
It’s laughable for Jack Smith to say that “we have one set of laws and they apply to everybody.” Either he’s naive and believes such drivel or he’s lying. When she was Secretary of State, Hillary Clinton kept hundreds of classified documents on her home-brewed server. She actually did jeopardize national security. The Inspector General found that the Chinese hacked her system and stole all of her classified documents.
Clinton wasn’t protected by the Presidential Records Act. She should have been prosecuted, convicted, and tossed in the hoosegow. She also obstructed justice by destroying evidence under subpoena. Hence, the Trump indictment is nothing more than selective prosecution and unequal application of the law.
It’s pretty clear what’s happening. Garland is interfering in a presidential election. He’s trying to knock out his boss’s opponent with manufactured charges while working overtime to protect Biden in his bribery and influence peddling scandals. It’s not just unequal application of the law, it’s crooked justice.
The optics of this are ugly. Biden’s administration is prosecuting his political opponent. That’s how many Americans are going to see this. Both candidates had classified documents. Yet, the person in power is not charged, but his opponent is.
It’s a frontal assault on democracy. It’s the equivalent of fixing an election.