Disclaimer: This article may contain the personal views and opinions of the author.
A 2012 ruling stated that presidents have the power to declare any records as “personal”, without challenge.
Now, that decision could have major implications for the FBI’s recent raid of Donald Trump’s Mar-a-Lago resort, which included a search of the first lady’s closet.
The issue at hand is whether or not Trump can keep certain records, including emails and other correspondence, out of the hands of law enforcement.
Interestingly enough, this isn’t the first time that a presidential couple has tried to keep their communications under wraps.
In 1998, then-President Bill Clinton and first lady Hillary Clinton tried to keep a set of audio tapes private that were recorded during conversations the couple had in their White House bedroom.
The tapes were eventually turned over to independent counsel Kenneth Starr, who was investigating the Clintons at the time but not before a lengthy legal battle.
In his ruling, Judge Norma Holloway Johnson said that while the president does have some privacy rights, his discretion to declare records “personal” is far-reaching and generally unchallengeable.
Now, nearly 20 years later, that ruling could have major implications for Trump.
According to legal experts, if Trump is found to have used personal email accounts for government business, as Hillary Clinton did, then the FBI may be able to obtain those records through a subpoena.
But if Trump can prove that the emails in question are purely personal, then he may be able to keep them out of the hands of law enforcement.
Only time will tell how this legal battle will play out, but one thing is for sure: history has a funny way of repeating itself.
In 2009, then-President Barack Obama’s Department of Justice refused to prosecute Bill Clinton for lying under oath about his relationship with White House intern Monica Lewinsky.
But a case that Judicial Watch, a conservative watchdog group, filed against Clinton in 2016 might result in the FBI raiding the 42nd president’s home.
The case is most memorable for the largely embarrassing exposure of then-President Clinton’s infidelity that came to light when audio tapes of his conversations with Monica Lewinsky were released. The tapes became the central point of a 2009 book that Taylor Branch wrote.
In 2010, Judicial Watch brought a case in federal court challenging the legality of Bill Clinton’s pardon of Marc Rich. After losing at the district court level, on appeal Attorney General Loretta Lynch claimed that there was no provision in the Presidential Records Act allowing National Archives officials to seize documents from a former president.
But Judicial Watch appealed the decision, and on Tuesday a three-judge panel from the U.S. Court of Appeals for the D.C. Circuit ruled that Jackson “erred” in her decision.
“We therefore vacate the district court’s judgment and remand with instructions to enter an order compelling the National Archives to conduct a further search for responsive records in accordance with this opinion,” the opinion said.
The case centers on whether Clinton violated the Presidential Records Act when he used a private email server to conduct official business as president.
Clinton has long claimed that he used the server for convenience, but emails released in 2016 showed that Clinton discussed classified information on the server. The server was also used to coordinate with the Clinton Foundation, which was the subject of a criminal investigation by the FBI at the time.
