Dear Reader,

Since Donald Trump was indicted in federal court last week on thirty-seven charges including violations of the Espionage Act, obstruction of justice, and making false statements, the former president’s supporters have been scrambling to find some kind of defense for his conduct. These include the same ones which have been trotted out over the last few months, like the claim that Trump didn’t know he possessed classified documents because his aides were responsible for packing them, or that Trump telepathically declassified the documents before he left office. (The indictment specifically undercuts both of these defenses, incidentally, citing an audiotape of Trump’s own words.) The latest one, which appears to be gaining some traction in right-wing circles, is that the classified documents found at Mar-a-Lago were “personal records” under the Presidential Records Act. This defense is as much of a nonstarter as the other ones, but it’s worth unpacking the haphazard logic, since it’s likely we’ll be hearing much more about it.

First, a quick backgrounder on the Presidential Records Act. Until 1974, presidents could basically take whatever documents they had when they left office, and do whatever they wanted with them. Some presidents, like Franklin Roosevelt, donated their papers to the National Archives and Records Administration (NARA) – but there was no requirement to do so. After his resignation, Richard Nixon wanted to take his documents, including the secret tape recordings he made while in the Oval Office, back home to California. Recognizing their historical and public value, Congress passed the Presidential Recordings and Materials Preservation Act, which declared all of Nixon’s documents and tapes as public property. This legislation only applied to Nixon; in 1978, Congress passed the broader Presidential Records Act, which applies to all presidents when they leave office. As stated on the NARA website, “[t]he PRA changed the legal ownership of the official records of the President from private to public, and established a new statutory structure under which Presidents, and subsequently NARA, must manage the records of their Administrations.”

Essentially, the PRA creates two categories of records: presidential records, and personal records. Presidential records are defined as documentary materials “created or received by the President [or his agents] 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.” By contrast, personal records are documentary materials 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.” Examples of personal records include diaries or journals, “materials related to private political associations” unrelated to presidential duties, and campaign materials. Importantly, the PRA requires that, “to the extent practicable,” any documentary materials received by the president or his office be categorized as one or the other at the time they are created or received.