The uproar is so thick it can be cut with a knife. First, it was Donald Trump with a trove of classified documents from his administration at Mar-A-Lag0 in his official private residence. Now, it’s Joe Biden — as Vice President — with “some” classified documents stashed in a closet at this think tank in Washington D.C. and a second trove locked in his garage (along with his Corvette) at his house in Wilmington, Delaware.
We all know how these documents should be handled. The problem here is everyone tells an “official” story about the regulations of keeping Presidential records, who can look at them, who can’t, how and where they are supposed to be kept and maintained, and what happens to wrongdoers who “test the system.” Let’s make something clear: it matters NOT what Donald Trump or Joe Biden thinks, the regulations are there. Our problem is that everyone wants to tell us what the regulations say and mean. So let’s clear the air: let’s look at the Law that spells all of this stuff out. It’s fairly lengthy, but it has complete and understandable language that covers it all. That means it will take a while to read it. But isn’t it worth doing so as Americans to know what our Presidents and Vice Presidents are doing that is statutorily wrong and right? (If you don’t care to read 44 U.S.C. Chapter 44, skim through to get to the closing segment of this story)
Presidential Records (44 U.S.C. Chapter 22)
(44 U.S.C. Chapter 22)
§ 2201. Definitions
§ 2202. Ownership of Presidential records
§ 2203. Management and custody of Presidential records
§ 2204. Restrictions on access to Presidential records
§ 2205. Exceptions to restricted access
§ 2206. Regulations
§ 2207. Vice-Presidential records
§ Note. Rule of Construction
§ 2208. Claims of constitutionally based privilege against disclosure
§ 2209. Disclosure requirement for official business conducted using non-official electronic messaging accounts
As used in this chapter–
(1) The term “documentary material” means all books, correspondence, memoranda, documents, papers, pamphlets, works of art, models, pictures, photographs, plats, maps, films, and motion pictures, including, but not limited to, audio and visual records, or other electronic or mechanical recordations, whether in analog, digital, or any other form.
(2) The term “Presidential records” means documentary materials, or any reasonably segregable portion thereof, created or received by the President, the President’s immediate staff, or a unit or individual of the Executive Office of the President whose function is to advise or assist the President, in the course of conducting activities which relate to or have an effect upon the carrying out of the constitutional, statutory, or other official or ceremonial duties of the President. Such term–
(A) includes any documentary materials relating to the political activities of the President or members of the President’s staff, but only if such activities relate to or have a direct effect upon the carrying out of constitutional, statutory, or other official or ceremonial duties of the President; but
(B) does not include any documentary materials that are (i) official records of an agency (as defined in section 552(e) of title 5, United States Code; (ii) personal records; (iii) stocks of publications and stationery; or (iv) extra copies of documents produced only for convenience of reference, when such copies are clearly so identified.
(3) The term “personal records” means all documentary materials, or any reasonably segregable portion thereof, of a purely private or nonpublic character which do not relate to or have an effect upon the carrying out of the constitutional, statutory, or other official or ceremonial duties of the President. Such term includes–
(A) diaries, journals, or other personal notes serving as the functional equivalent of a diary or journal which are not prepared or utilized for, or circulated or communicated in the course of, transacting Government business;
(B) materials relating to private political associations, and having no relation to or direct effect upon the carrying out of constitutional, statutory, or other official or ceremonial duties of the President; and
(C) materials relating exclusively to the President’s own election to the office of the Presidency; and materials directly relating to the election of a particular individual or individuals to Federal, State, or local office, which have no relation to or direct effect upon the carrying out of constitutional, statutory, or other official or ceremonial duties of the President.
(4) The term “Archivist” means the Archivist of the United States.
(5) The term “former President”, when used with respect to Presidential records, means the former President during whose term or terms of office such Presidential records were created.
§ 2202. Ownership of Presidential records
The United States shall reserve and retain complete ownership, possession, and control of Presidential records; and such records shall be administered in accordance with the provisions of this chapter.
§ 2203. Management and custody of Presidential records
(a) Through the implementation of records management controls and other necessary actions, the President shall take all such steps as may be necessary to assure that the activities, deliberations, decisions, and policies that reflect the performance of the President’s constitutional, statutory, or other official or ceremonial duties are adequately documented and that such records are preserved and maintained as Presidential records pursuant to the requirements of this section and other provisions of law.
(b) Documentary materials produced or received by the President, the President’s staff, or units or individuals in the Executive Office of the President the function of which is to advise or assist the President, shall, to the extent practicable, be categorized as Presidential records or personal records upon their creation or receipt and be filed separately.
(c) During the President’s term of office, the President may dispose of those Presidential records of such President that no longer have administrative, historical, informational, or evidentiary value if–
(1) the President obtains the views, in writing, of the Archivist concerning the proposed disposal of such Presidential records; and
(2) the Archivist states that the Archivist does not intend to take any action under subsection (e) of this section.
(d) In the event the Archivist notifies the President under subsection (c) that the Archivist does intend to take action under subsection (e), the President may dispose of such Presidential records if copies of the disposal schedule are submitted to the appropriate Congressional Committees at least 60 calendar days of continuous session of Congress in advance of the proposed disposal date. For the purpose of this section, continuity of session is broken only by an adjournment of Congress sine die, and the days on which either House is not in session because of an adjournment of more than three days to a day certain are excluded in the computation of the days in which Congress is in continuous session.
(e) The Archivist shall request the advice of the Committee on Rules and Administration and the Committee on Governmental Affairs of the Senate and the Committee on House Oversight and the Committee on Government Operations of the House of Representatives with respect to any proposed disposal of Presidential records whenever the Archivist considers that–
(1) these particular records may be of special interest to the Congress; or
(2) consultation with the Congress regarding the disposal of these particular records is in the public interest.
(f) During a President’s term of office, the Archivist may maintain and preserve Presidential records on behalf of the President, including records in digital or electronic form. The President shall remain exclusively responsible for custody, control and access to such Presidential records. The Archivist may not disclose any such records, except under direction of the President, until the conclusion of a President’s term of office, if a President serves consecutive terms upon the conclusion of the last term, or such other period provided for under section 2204 of this title.
(g)(1) Upon the conclusion of a President’s term of office, or if a President serves consecutive terms upon the conclusion of the last term, the Archivist of the United States shall assume responsibility for the custody, control, and preservation of, and access to, the Presidential records of that President. The Archivist shall have an affirmative duty to make such records available to the public as rapidly and completely as possible consistent with the provisions of this chapter.
(2) The Archivist shall deposit all such Presidential records in a Presidential archival depository or another archival facility operated by the United States. The Archivist is authorized to designate, after consultation with the former President, a director at each depository or facility, who shall be responsible for the care and preservation of such records.
(3) When the President considers it practicable and in the public interest, the President shall include in the President’s budget transmitted to Congress, for each fiscal year in which the term of office of the President will expire, such funds as may be necessary for carrying out the authorities of this subsection.
(4) The Archivist is authorized to dispose of such Presidential records which the Archivist has appraised and determined to have insufficient administrative, historical, informational, or evidentiary value to warrant their continued preservation. Notice of such disposal shall be published in the Federal Register at least 60 days in advance of the proposed disposal date. Publication of such notice shall constitute a final agency action for purposes of review under chapter 7 of title 5, United States Code.
§ 2204. Restrictions on access to Presidential records
(a) Prior to the conclusion of a President’s term of office or last consecutive term of office, as the case may be, the President shall specify durations, not to exceed 12 years, for which access shall be restricted with respect to information, in a Presidential record, within one or more of the following categories:
(1)(A) specifically authorized under criteria established by an Executive order to be kept secret in the interest of national defense or foreign policy and
(B) in fact properly classified pursuant to such Executive order;
(2) relating to appointments to Federal office;
(3) specifically exempted from disclosure by statute (other than sections 552 and 552b of title 5, United States Code), provided that such statute
(A) requires that the material be withheld from the public in such a manner as to leave no discretion on the issue, or
(B) establishes particular criteria for withholding or refers to particular types of material to be withheld;
(4) trade secrets and commercial or financial information obtained from a person and privileged or confidential;
(5) confidential communications requesting or submitting advice, between the President and the President’s advisers, or between such advisers; or
(6) personnel and medical files and similar files the disclosure of which would constitute a clearly unwarranted invasion of personal privacy.
(b)(1) Any Presidential record or reasonably segregable portion thereof containing information within a category restricted by the President under subsection (a) shall be so designated by the Archivist and access thereto shall be restricted until the earlier of–
(A)(i) the date on which the former President waives the restriction on disclosure of such record, or
(ii) the expiration of the duration specified under subsection (a) for the category of information on the basis of which access to such record has been restricted; or
(B) upon a determination by the Archivist that such record or reasonably segregable portion thereof, or of any significant element or aspect of the information contained in such record or reasonably segregable portion thereof, has been placed in the public domain through publication by the former President, or the President’s agents.
(2) Any such record which does not contain information within a category restricted by the President under subsection (a), or contains information within such a category for which the duration of restricted access has expired, shall be exempt from the provisions of subsection (c) until the earlier of–
(A) the date which is 5 years after the date on which the Archivist obtains custody of such record pursuant to section 2203(d)(1) [sic: should reference 2203(g)(1)]; or
(B) the date on which the Archivist completes the processing and organization of such records or integral file segment thereof.
(3) During the period of restricted access specified pursuant to subsection (b)(1), the determination whether access to a Presidential record or reasonably segregable portion thereof shall be restricted shall be made by the Archivist, in his discretion, after consultation with the former President, and, during such period, such determinations shall not be subject to judicial review, except as provided in subsection (e) of this section. The Archivist shall establish procedures whereby any person denied access to a Presidential record because such record is restricted pursuant to a determination made under this paragraph, may file an administrative appeal of such determination. Such procedures shall provide for a written determination by the Archivist or the Archivist’s designee, within 30 working days after receipt of such an appeal, setting forth the basis for such determination.
(c)(1) Subject to the limitations on access imposed pursuant to subsections (a) and (b), Presidential records shall be administered in accordance with section 552 of title 5, United States Code, except that paragraph (b)(5) of that section shall not be available for purposes of withholding any Presidential record, and for the purposes of such section such records shall be deemed to be records of the National Archives and Records Administration. Access to such records shall be granted on nondiscriminatory terms.
(2) Nothing in this Act shall be construed to confirm, limit, or expand any constitutionally-based privilege which may be available to an incumbent or former President.
(d) Upon the death or disability of a President or former President, any discretion or authority the President or former President may have had under this chapter, except section 2208, shall be exercised by the Archivist unless otherwise previously provided by the President or former President in a written notice to the Archivist.
(e) The United States District Court for the District of Columbia shall have jurisdiction over any action initiated by the former President asserting that a determination made by the Archivist violates the former President’s rights or privileges.
(f) The Archivist shall not make available any original Presidential records to any individual claiming access to any Presidential record as a designated representative under section 2205(3) of this title if that individual has been convicted of a crime relating to the review, retention, removal, or destruction of records of the Archives.
§ 2205. Exceptions to restricted access
Notwithstanding any restrictions on access imposed pursuant to sections 2204 and 2208–
(1) the Archivist and persons employed by the National Archives and Records Administration who are engaged in the performance of normal archival work shall be permitted access to Presidential records in the custody of the Archivist;
(2) subject to any rights, defenses, or privileges which the United States or any agency or person may invoke, Presidential records shall be made available–
(A) pursuant to subpoena or other judicial process issued by a court of competent jurisdiction for the purposes of any civil or criminal investigation or proceeding;
(B) to an incumbent President if such records contain information that is needed for the conduct of current business of the incumbent President’s office and that is not otherwise available; and
(C) to either House of Congress, or, to the extent of matter within its jurisdiction, to any committee or subcommittee thereof if such records contain information that is needed for the conduct of its business and that is not otherwise available; and
(3) the Presidential records of a former President shall be available to such former President or the former President’s designated representative.
The Archivist shall promulgate in accordance with section 553 of title 5, United States Code, regulations necessary to carry out the provisions of this chapter. Such regulations shall include–
(1) provisions for advance public notice and description of any Presidential records scheduled for disposal pursuant to section 2203(f)(3) [sic: should reference 2203(g)(4)];
(2) provisions for providing notice to the former President when materials to which access would otherwise be restricted pursuant to section 2204(a) are to be made available in accordance with section 2205(2);
(3) provisions for notice by the Archivist to the former President when the disclosure of particular documents may adversely affect any rights and privileges which the former President may have; and
(4) provisions for establishing procedures for consultation between the Archivist and appropriate Federal agencies regarding materials which may be subject to section 552(b)(7) of title 5, United States Code.
§ 2207. Vice-Presidential records
Vice-Presidential records shall be subject to the provisions of this chapter in the same manner as Presidential records. The duties and responsibilities of the Vice President, with respect to Vice-Presidential records, shall be the same as the duties and responsibilities of the President under this chapter, except Section 2208, with respect to Presidential records. The authority of the Archivist with respect to Vice-Presidential records shall be the same as the authority of the Archivist under this chapter with respect to Presidential records, except that the Archivist may, when the Archivist determines that it is in the public interest, enter into an agreement for the deposit of Vice-Presidential records in a non-Federal archival depository. Nothing in this chapter shall be construed to authorize the establishment of separate archival depositories for such Vice-Presidential records.
Nothing in the amendment made by paragraph (2)(C) [amending section 2207] shall be construed to—
(A) affect the requirement of section 2207 of title 44, United States Code, that Vice Presidential records shall be subject to chapter 22 of that title in the same manner as Presidential records; or
(B) affect any claim of constitutionally based privilege by a President or former President with respect to a Vice Presidential record.
§ 2208. Claims of constitutionally based privilege against disclosure
(a)(1) When the Archivist determines under this chapter to make available to the public any Presidential record that has not previously been made available to the public, the Archivist shall—
(A) promptly provide notice of such determination to—
(i) the former President during whose term of office the record was created; and
(ii) the incumbent President; and
(B) make the notice available to the public.
(2) The notice under paragraph (1)—
(A) shall be in writing; and
(B) shall include such information as may be prescribed in regulations issued by the Archivist.
(3)(A) Upon the expiration of the 60-day period (excepting Saturdays, Sundays, and legal public holidays) beginning on the date the Archivist provides notice under paragraph (1)(A), the Archivist shall make available to the public the Presidential record covered by the notice, except any record (or reasonably segregable part of a record) with respect to which the Archivist receives from a former President or the incumbent President notification of a claim of constitutionally based privilege against disclosure under subsection (b).
(B) A former President or the incumbent President may extend the period under subparagraph (A) once for not more than 30 additional days (excepting Saturdays, Sundays, and legal public holidays) by filing with the Archivist a statement that such an extension is necessary to allow an adequate review of the record.
(C) Notwithstanding subparagraphs (A) and (B), if the 60-day period under subparagraph (A), or any extension of that period under subparagraph (B), would otherwise expire during the 6-month period after the incumbent President first takes office, then that 60-day period or extension, respectively, shall expire at the end of that 6-month period.
(b)(1) For purposes of this section, the decision to assert any claim of constitutionally based privilege against disclosure of a Presidential record (or reasonably segregable part of a record) must be made personally by a former President or the incumbent President, as applicable.
(2) A former President or the incumbent President shall notify the Archivist, the Committee on Oversight and Government Reform of the House of Representatives, and the Committee on Homeland Security and Governmental Affairs of the Senate of a privilege claim under paragraph (1) on the same day that the claim is asserted under such paragraph.
(c)(1) If a claim of constitutionally based privilege against disclosure of a Presidential record (or reasonably segregable part of a record) is asserted under subsection (b) by a former President, the Archivist shall consult with the incumbent President, as soon as practicable during the period specified in paragraph (2)(A), to determine whether the incumbent President will uphold the claim asserted by the former President.
(2)(A) Not later than the end of the 30-day period beginning on the date of which the Archivist receives notification from a former President on the assertion of a claim of constitutionally based privilege against disclosure, the Archivist shall provide notice to the former President and the public of the decision of the incumbent President under paragraph (1) regarding the claim.
(B) If the incumbent President upholds the claim of privilege asserted by the former President, the Archivist shall not make the Presidential record (or reasonably segregable part of a record) subject to the claim publicly available unless.
(i) the incumbent President withdraws the decision upholding the claim of privilege asserted by the former President; or
(ii) the Archivist is otherwise directed by a final court order that is not subject to appeal.
(C) If the incumbent President determines not to uphold the claim of privilege asserted by the former President, or fails to make the determination under paragraph (1) before the end of the period specified in subparagraph (A), the Archivist shall release the Presidential record subject to the claim at the end of the 90-day period beginning on the date on which the Archivist received notification of the claim, unless otherwise directed by a court order in an action initiated by the former President under section 2204(e) of this title or by a court order in another action in any Federal court.
(d) The Archivist shall not make publicly available a Presidential record (or reasonably segregable part of a record) that is subject to a privilege claim asserted by the incumbent President unless—
(1) the incumbent President withdraws the privilege claim; or
(2) the Archivist is otherwise directed by a final court order that is not subject to appeal.
(e) The Archivist shall adjust any otherwise applicable time period under this section as necessary to comply with the return date of any congressional subpoena, judicial subpoena, or judicial process.
§ 2209. Disclosure requirements for official business conducted using non-official electronic messaging accounts
(a) In General- The President, the Vice President, or a covered employee may not create or send a Presidential or Vice Presidential record using a non-official electronic message account unless the President, Vice President, or covered employee–
(1) copies an official electronic messaging account of the President, Vice President, or covered employee in the original creation or transmission of the Presidential record or Vice Presidential record; or
(2) forwards a complete copy of the Presidential or Vice Presidential record to an official electronic messaging account of the President, Vice President, or covered employee not later than 20 days after the original creation or transmission of the Presidential or Vice Presidential record.
(b) Adverse Actions- The intentional violation of subsection (a) by a covered employee (including any rules, regulations, or other implementing guidelines), as determined by the appropriate supervisor, shall be a basis for disciplinary action in accordance with subchapter I, II, or V of chapter 75 of title 5, as the case may be.
(c) Definitions.—In this section:
(1) COVERED EMPLOYEE- The term `covered employee’ means–
(A) the immediate staff of the President;
(B) the immediate staff of the Vice President;
(C) a unit or individual of the Executive Office of the President whose function is to advise and assist the President; and
(D) a unit or individual of the Office of the Vice President whose function is to advise and assist the Vice President.
(2) ELECTRONIC MESSAGES.—The term ‘electronic messages’ means electronic mail and other electronic messaging systems that are used for purposes of communicating between individuals.
(3) ELECTRONIC MESSAGING ACCOUNT.—The term ‘electronic messaging account’ means any account that sends electronic messages.
Summary
Let’s be honest: it appears that both former President Trump and former Vice President Biden messed up in their handling of classified documents. Let’s also be honest about this: there’s nowhere in this statute that differentiates between classified documents removed from the White House being stored in a closet or stored in a locked garage in Delaware behind a Corvette!
The worst thing about this is that both men “did wrong.” (Notice, I didn’t say “both men broke the law.” After reading THE LAW, draw your own conclusions).
Here we are, watching the shenanigans in our nation’s Capitol play out in typical political fashion. Even if it’s not true, it appears that Attorney General Garland took action against Donald Trump that was — at least in part — a political hit job. It also appears that the existence of mishandled classified documents in the possession of Joe Biden was mishandled. Both men “technically” violated the above statute in some fashion.
It’s useless — and borders on stupidity — for Americans to harp on which is worse or better: the actions of Biden and Trump.
It is beyond sad to watch as the lines are drawn once again. This time it is about the war between Democrats and Republicans, NOT about the mishandling of classified documents — as it should be.
To honestly compare both according to the statute, there’s one glaring difference: as President, Donald Trump in had sweeping leeway to de-classifying documents. Joe Biden was NOT President. A Vice President can de-classify documents, but must do so in the process demanded by statute. Biden did not do so. He unquestionably broke federal law!
What will the result of all this be? Neither will be prosecuted. Political sides will be taken with lines drawn between the two as always happens, and the American taxpayer loses. What do “We The People” lose? Our government will use the moment to seize more power from the people to control itself. And the Swamp will take this occurrence and use it as a weapon against anyone and anybody with whom there’s disagreement.
This is NOT an example of Democracy doing its “Thing.” Rather, it’s an example of political players getting caught “greying the lines” of what is right, just “acceptable,” and what is outright wrong.
And neither is a good ending — for the American People.
