...reiterate that you have not identified the person/entity in government who can override the president's document categorization powers, and the whole case hinges on that, IMO. The PRA clearly states that the president has the right to keep his personal docs AND that the president is the one who gets to determine which records are personal vs. which are presidential. (I think these powers are implicit in Article II, so the PRA is simply acknowledging them, rather than granting them, but that's a discussion for another day.)

Yes, the PRA provides guidance as to how that should be done and which types of records should fall into each category, but there is an inherent massive grey area there and, regardless, because the final determination is left up to the president, it's still his decision. I think the Clinton case decision followed this exact logic. So, the PRA guidance is unenforceable (again, unless you can identify whose power in this regard can supercede the president's), and I'd note that neither Smith nor anyone else in this avalanche of corrupt anti-Trump lawfare has charged Trump with violating the PRA.

You can see how this question would play out in a trial setting, which is why Cannon asked for draft jury instructions from both parties:
-- Smith has charged an Espionage Act violation for "unauthorized" possession of documents blah, blah, blah.
-- One of Trump's defenses would be that the Espionage Act charge fails because he, in fact, WAS AUTHORIZED (or reasonably believed he was authorized) to possess the docs as personal records so categorized by him as president according to the PRA (and Constitution).
-- Smith will than have to argue that the records don't qualify as "personal" because they aren't diaries, etc.
-- Trump will then argue that only the president has the power to determine what is personal based on the Constitution, the PRA and precedent from the Clinton case.
-- Smith will then have to answer the question I've been asking you by claiming, no, the president does NOT get to decide how to categorize his records. Instead, someone else gets to categorize them, but then he'll have to identify who that other person is and from where they derive their power. This is where the case blows up on Constitutional grounds, IMO, because he won't be able to do that. There is no such other superior power either in the executive branch or in a separate, co-equal branch.

So, yes, the president could, if he wanted, take lists of spies with him when he leaves office. He shouldn't, and it's an absurd hypothetical, but he could. We just have to rely on the good sense of the people we elect not to pull shit like this, but a Constitutional democracy isn't perfect. This presidential power is related to the absolute authority vested in the head of the executive branch. To refute this argument, you have to identify someone whose power supercedes it, and you have not, nor has anyone else.

This has been an enjoyable back and forth, and I appreciate your thoughtfulness in posting and the time you've taken to engage in good faith on an interesting topic.

[Post edited by Los Angeles Hoo at 04/06/2024 11:48AM]