Former President Donald Trump deployed a novel strategy Tuesday against charges of mishandling classified documents: the “Clinton Socks” defense.
He mentioned the “Clinton socks” precedent in remarks to supporters at his golf club in Bedminster, New Jersey. And — as Scott Adams first pointed out — of all the alleged false claims that CNN pointed out in its “fact check” of his speech, the “Clinton socks” defense was curiously absent.
That is because it is a particularly strong defense — and, of course, because it points to the fact that the Clintons — both Bill and Hillary — took government documents home with them without being prosecuted for doing so.
The “Clinton Socks” case did not involve President Bill Clinton’s cat, whose name happened to be “Socks,” but rather an infamous episode in which Bill Clinton stuffed 79 audio tape recordings in his sock drawer after his presidency. Clinton later claimed the tapes were personal records not subject to the President Records Act of 1978 (PRA), despite allegations they contained classified information and conversations with foreign leaders.
Judicial Watch’s Michael Bekesha opined in yesterday’s Wall Street Journal that a President can choose what records to keep or return to the National Archives. Bekesha said he understood this well because, as he put it, “I know because I’m the lawyer who lost the ‘Clinton sock drawer’ case.” He noted that the Department of Justice (DOJ) and a federal judge in 2012 defined presidential records as anything left at the White House after a sitting president leaves office. The “Clinton Socks” precedent could therefore provide a path for Trump to argue that the records seized from Mar-A-Lago were personal in nature, even if they contained sensitive information.
DOJ is certainly familiar with the “Clinton Socks” defense. Moreover, there are parallels between the two cases in that both former Presidents Clinton and Trump allegedly disclosed classified information in private meetings. Special Prosecutor Jack Smith’s indictment of Trump also relies on audio recordings of an interview between Trump and a writer and publisher. In the “Clinton Socks” case, the tapes contained troves of private interviews conducted with historian Taylor Branch while Clinton was in office that allegedly recorded phone calls and discussions Clinton had as part of his official duties. The court’s opinion in the “Clinton Socks” case states that the sole authority to classify records pursuant to the (PRA) rests solely with the president, and that the National Archives does not have any authority regarding classification, nor can it seize presidential records.
The “Clinton Socks” defense was just one of the arguments Trump cited. He also noted, as conservative radio host Mark Levin has pointed out, that the Espionage Act of 1917, which Trump is accused of violating, was not intended to apply to presidents. If it had been, then every president who took documents with him before the passage of the PRA in 1978 could have been prosecuted for “espionage.” Trump also noted that the indictment failed to deal with the PRA itself, and he claimed that the Mar-a-Lago raid violated his Fourth Amendment rights to be free from “unreasonable searches and seizures” — seizures that included his personal passport.
It remains to be seen whether any of these arguments are strong enough to quash the indictment. But the “Clinton Socks” defense is among the more formidable ones — a fact to which CNN’s relative silence attests.