In a few hours, we’ll get to see both a redacted version of the affidavit underlying the search warrant for Donald Trump’s golf club and whatever his lawyers manage to cobble together in response to US District Judge Aileen Cannon’s order to turn the pile of word vomit in their “Merrick Hates Me” Motion into something resembling a legal document.
But until then, we’ll have to content ourselves with Judicial Watch’s Tom Fitton, since, according to CNN, that’s who’s giving Trump legal advice these days.
Fitton, the longtime head of the legal activist group Judicial Watch, had a simple message for Trump — it was a mistake to give the records to the Archives, and his team should never have let the Archives “strong-arm” him into returning them, according to three sources familiar with the matter.
Those records belonged to Trump, Fitton argued, citing a 2012 court case involving his organization that he said gave the former President authority to do what he wanted with records from his own term in office.
The Judicial Watch president suggested to Trump that if the Archives came back, he should not give up any additional records, according to sources with knowledge of their conversations, which have not been previously reported.
Fitton, who heads an organization which sues liberals and stokes culture war issues, is not a lawyer. He does, however, rake in a ton of cash shouting about the law in his signature too-tight shirts, which is perhaps why a MAGA-world source told CNN that “The moment Tom got in the boss’ ear, it was downhill from there.”
Yesterday, after prosecutors complied with US Magistrate Judge Bruce Reinhart’s order to file a redacted version of the affidavit under seal for his review, Fitton tweeted, “BREAKING: Biden DOJ corrupt secrecy on Trump raid continues. They filed two new documents completely under seal in @JudicialWatch legal action seeking transparency on the political raid.”
Very cool, very legal.
Here’s his summary of the case which “proves” that every lawyer in DC and Florida is WRONG, and the president can designate literally anything he wants as a personal record and take it home with him.
What? You don’t want to watch eight minutes of a crazy person shouting nonsense?
Okay, let’s summarize. In 2009, Judicial Watch filed a FOIA request to access 79 hours of audiotapes historian Taylor Branch made of then President Bill Clinton for his book entitled, “The Clinton Tapes: Wrestling History with the President.” The Archives responded that it didn’t have those tapes, because they were personal records and thus hadn’t been retained. Judicial Watch then sued to force the Archives to designate the tapes as official presidential records and seize them from whichever third party had possession of them.
US District Judge Amy Berman Jackson dismissed the case because that is not how the Freedom of Information Act works. Ditto for the Presidential Records Act and the Administrative Procedure Act. From which Fitton infers that the president’s designation of a record as personal cannot be questioned in any forum, and so Trump should just tell the Archives and the DOJ to pound sand because the boxes of classified documents he took are “personal.”
“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 yells. “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.”
By this logic, a president could designate the entire National Security archive as “personal” on his way out the door, and that would be totally cool.
In point of fact, that trick didn’t work for Richard Nixon, and it’s not going to work for Trump either, despite Fitton’s insistence that the Presidential Records Act is unconstitutional. And indeed the quote Fitton cites from Judge Jackson’s opinion saying that “the PRA requires the President to ‘maintain records documenting the policies, activities, and decisions of his administration,’ but ‘leav[es] the implementation of such a requirement in the President’s hands.’ is followed in the very next paragraph by an acknowledgment that, on remand, “the Court of Appeals explained that although judicial review was limited under the PRA, it was not precluded entirely.”
Also, the Presidential Records Act is pretty clear on what is and is not an official presidential record. But why Google that stuff when you could just take Tom Fitton’s word for it, right?
That’s what a billionaire ex-president would do, anyway, and it seems to be working out great for him.
Liz Dye lives in Baltimore where she writes about law and politics.