Government

Trump Ignored His Lawyers And A Grand Jury Subpoena Because Of Literal Locker Room Talk

Kind of a fitting coda, no?

By Liz Dye on June 15, 2023 2:42 pm
President Trump Announces Revised NAFTA Deal With Mexico

(Photo by Win McNamee/Getty Images)

Imagine going to jail for a decade or more because you ignored the advice of your lawyers and instead listened to a gym-addled pitchman who told you that you had the right to hang onto classified documents forever.

That would be BIGLY stupid.

And yet the Washington Post is out today with another tick-tock of the Trump documents debacle confirming that the former president talked himself into 37 felony counts because Tom Fitton of Judicial Watch convinced him that he didn’t have to comply with a grand jury subpoena.

“It was a totally unforced error,” said one person close to Trump who has been part of dozens of discussions about the documents. “We didn’t have to be here.”

Trump time and again rejected the advice from lawyers and advisers who urged him to cooperate and instead took the advice of Tom Fitton, the head of the conservative group Judicial Watch, and a range of others who told him he could legally keep the documents and should fight the Justice Department, advisers said. Trump would often cite Fitton to others, and Fitton told some of Trump’s lawyers that Trump could keep the documents, even as they disagreed, the advisers said.

Fitton is not a lawyer, although he does head up a shop dedicated to suing the government for dirt on Democrats. And when he bellowed that, under the Presidential Records Act, the president’s designation of a record as “personal” was unreviewable, Trump believed him.

And thus was born the legend of the “Socks Case,” so named because Bill Clinton allegedly kept 79 cassette tapes made by his biographer Taylor Branch in his sock drawer. Nine years after Clinton left office, Judicial Watch sued, demanding that the National Archives designate the tapes a presidential record, seize them, and then hand them over under FOIA. Judge Amy Berman Jackson dismissed the case, because “FOIA does not give rise to a private right of action to compel an agency to retrieve documents that are not in its possession” and “there is no indication in the record that Congress intended to supplant the limited remedies available in the PRA with FOIA.”

On its face, this would seem to be a limited ruling on the ability of citizens to sue to force NARA to classify a document as government property. But Fitton seized on a passage in the holding saying that “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.” From this, he infers that the PRA confers absolute authority on the executive to declare any document, no matter how sensitive to the national security, a personal record and thence to expropriate it.

This ignores the explicit language of the PRA, describing what makes a document “presidential” and requiring that personal documents be designated as such when created or received — i.e. not when the defeated president is packing to leave the White House, and certainly not 18 months after that when NARA comes calling. This interpretation also ignores the legislative history of the PRA, which was originally passed in 1978 after Richard Nixon sought to destroy records from his time in office claiming that they were his, personal records. And taken to its logical extreme, Fitton’s reading would empower a former president to declare the entire CIA archives a personal record and publish it as a coffee table book after leaving office.

But Fitton is nothing if not a maximalist, at least when it comes to reading the law in a way that benefits conservatives.

“No one but the president gets to pick what’s presidential records, no one but the president gets to pick what are personal records,” he shouted on Twitter. “And the Archivist, which is being used as a cutout for the anti-Trumpers running our government here in DC, has no authority to second-guess him.”

There was, of course, someone with the authority to second-guess those “anti-Trumpers running our government here in DC.” If Trump was convinced of his right to “DECLARE PERSONALLLLL” like Michael Scott in The Office, he could have marched into the federal courthouse and, citing the “Socks Case,” asked a judge to quash the subpoena for all the classified documents in his possession. Instead he took steps to secretly remove documents from the boxes of his presidential records, and then induced his attorney to sign a false declaration saying that he’d complied with the court order — hardly a ringing endorsement of Fitton’s theory.

But if the former president is pissed at Fitton for leading him down the garden path (to the grand jury), he’s hiding it well.

The Post reports that Fitton was at Doral on Monday for dinner with Trump, his lawyer Chris Kise, the valet Walt Nauta, and Nauta’s lawyer Stanely Woodward.

“I saw him last night; he’s in a good mood. He’s serious and ready to fight under the law,” Fitton told reporters

“I think what is lacking is the lawyers saying, ‘I took this to be obstruction,’” he went on. “Where is the conspiracy? I don’t understand any of it. I think this is a trap. They had no business asking for the records … and they’ve manufactured an obstruction charge out of that. There are core constitutional issues that the indictment avoids, and the obstruction charge seems weak to me.”

And if you can’t trust Tom Fitton’s to render a sound legal opinion, who can you trust?

Trump rejected lawyers’ efforts to avoid classified documents indictment [WaPo]
Judicial Watch v. National Archives [Docket via Court Listener]

Liz Dye lives in Baltimore where she writes about law and politics and appears on the Opening Arguments podcast.