Trump likely to try 'Clinton socks' defense and cite 2012 precedent on Clinton audio recordings kept as 'personal' records

June 15, 2023
Ben Marquis

Former President Donald Trump was federally indicted last week by Special Counsel Jack Smith on felony charges under the Espionage Act in relation to his alleged mishandling of government documents after he left the White House.

As part of his defense, Trump's attorneys will likely argue that charges should only have been filed under the Presidential Records Act, and if so, those charges should then be dropped based on precedent involving former President Bill Clinton's sock drawer, Breitbart reported.

The "Clinton socks" defense, as it has been dubbed, refers to a 2012 Freedom of Information Act lawsuit that conservative Judicial Watch lost against the National Archives and Records Administration over a collection of audio tapes stored in Clinton's sock drawer that had been recorded during his tenure in the White House and likely contained classified or sensitive information.

The audio tapes in Clinton's sock drawer

Reuters reported that throughout the eight years of former President Clinton's two terms, he was often accompanied in the Oval Office of the White House by author and historian Taylor Branch and a tape recorder to document the goings-on of the Clinton presidency for a book that was eventually published in 2009.

Over the course of those eight years, 79 audio tapes were recorded that included not just interviews but also the president doing his actual job and speaking with staffers, Cabinet secretaries, members of Congress, and even foreign leaders, at times in relation to information that was classified.

Clinton designated those recordings to be "personal records" and not "presidential records," and as such kept them for himself instead of turning them over to the National Archives.

Judicial Watch v. NARA

Enter Judicial Watch, which filed a FOIA request for the Clinton tapes that turned into a lawsuit against NARA when NARA was unable to provide the watchdog group with the requested tapes since they had been designated as personal records and weren't in NARA's possession.

In that lawsuit, Judicial Watch asked the D.C. District Court to intervene and declare the tapes to be presidential records, order NARA to take custody of the tapes and deposit them in the Clinton Library, and then allow the group to access the tapes through the FOIA process.

NARA argued that it was unable to do any of that by virtue of the Presidential Records Act and moved for the case to be dismissed, which District Judge Amy Berman Jackson did in March 2012.

In her 16-page decision, Judge Jackson wrote that she dismissed the lawsuit because "NARA does not have the authority to designate materials as 'Presidential records,' NARA does not have the tapes in question, and NARA lacks any right, duty, or means to seize control of them."

She further explained, "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."

In other words, it is the president, and not the Archivist, who has the sole authority to decide what records generated during their presidency will be designated as "personal" or "presidential" records, and there is really no statutory recourse to challenge those decisions.

Legal theory disputed by some

To be sure, Reuters noted that there are some legal and national security analysts who have "vigorously disputed" the "Clinton socks" defense theory and argued that it is not applicable in this case as the differences are too broad between audio tapes recorded for personal use that happen to contain classified or defense information versus official government documents pertaining to classified or defense information that was explicitly created for official government purposes.

That said, Judicial Watch President Tom Fitton told Reuters, "The strong opinion from the court says the president has prerogatives that cannot be second-guessed," and added with regard to the documents found in former President Trump's possession, "These are not presidential records. These are personal records."

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