America First Legal Whitepaper: The President of the United States Has Absolute Authority Over His Presidential Papers, Undermining An Essential Element of the Biden DOJ’s Mar-a-Lago Prosecution

Even without the Presidential Records Act, the President has sole authority over his presidential papers.

WASHINGTON, D.C. – Today, America First Legal (AFL) released a whitepaper detailing why–as a matter of constitutional law, the Presidential Records Act (PRA), and historical practice–the President of the United States has absolute authority over presidential papers. Neither Congress nor the federal courts may lawfully abrogate or limit this authority. 

This constitutional fact has significant implications for Special Counsel Jack Smith’s prosecution against Donald J. Trump in the U.S. District Court for the Southern District of Florida. The Department of Justice has charged Donald Trump with violating 18 U.S.C. § 793(e), which provides:

(e) Whoever having unauthorized possession of, access to, or control over any document, writing, code book, signal book, sketch, photograph, photographic negative, blueprint, plan, map, model, instrument, appliance, or note relating to the national defense, or information relating to the national defense which information the possessor has reason to believe could be used to the injury of the United States or to the advantage of any foreign nation, willfully communicates, delivers, transmits or causes to be communicated, delivered, or transmitted, or attempts to communicate, deliver, transmit or cause to be communicated, delivered, or transmitted the same to any person not entitled to receive it, or willfully retains the same and fails to deliver it to the officer or employee of the United States entitled to receive it; or

(emphasis added). In obtaining the search warrant to raid Mar-a-Lago in 2022, the Biden DOJ relied upon the definition of a “Presidential Record” in 42 U.S.C. § 2201 to support its position that Donald Trump retained documents he did not have the authority to retain at the conclusion of his presidency, and that somehow, the National Archives and Records Administration possessed the authority to require them to be returned. 

The fatal flaw in Jack Smith’s political prosecution under section 793(e) is the fact that Donald Trumpas a matter of lawhad authorized possession of, access to, and control over his presidential records. AFL’s whitepaper articulates precisely how and why. 

As the whitepaper concludes:

Text, precedent, and executive practice reinforce the historical tradition. The records a President creates or receives while performing the duties of his office are his presidential records. That test does not depend on the content of the records, or whether the records are classified. The test does not change when a President leaves office. If, for example, a former President acquires new records after leaving office, those new records would not enjoy the same constitutional status as his presidential records acquired while in office. But the Presidential records a President takes with him upon vacating the presidency are his, to do with as he pleases. The President can keep them, sell them, destroy them, or donate them, as all Presidents have done.

Other commentators and analysts have asserted that the president has the absolute right under the PRA to determine which records are his, but they have not acknowledged the broader constitutional issues at the heart of the matter. Congress does not have the authority under the Constitution to tell the president which records are his and which are not. 

Since the founding of our republic, presidents leaving office have taken custody of their presidential records—the president’s records are his personal property because they were prepared by him, or for him, in furtherance of his official duties. The records also belong to him because the Constitution requires it. 

The documents that a president prepares or receives during his term in office belong to him. A reading of the Presidential Records Act that fails to account for a former president’s right to possess and control his records is inconsistent with the text, history, and precedent of presidential records. Thus, the politically-motivated Florida prosecution of President Trump is impossible under the law.

Statement from Gene Hamilton, America First Legal Vice President and General Counsel:

“The weaponized Department of Justice has taken a position that flips the Executive Branch on its head. The records a President creates or receives while performing the duties of his office are his presidential records. Neither Congress nor the President’s subordinate cabinet members nor the federal courts can change that. The principal charge in the Biden DOJ’s prosecution in the Southern District of Florida is unconstitutional, and it should be dismissed as such,” said Gene Hamilton.

Read the whitepaper here.

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