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Why Tom Fitton's misguided advice to Trump matters

The informal adviser to Donald Trump was seen this week entering the federal courthouse where special counsel Jack Smith's grand juries meet.


On Thursday, Tom Fitton, the president of conservative activist group Judicial Watch and an informal adviser to former President Donald Trump, was seen by NBC News entering a federal courthouse in Washington, D.C.

That courthouse is where the grand juries under special counsel Jack Smith’s purview meet — and at least one prosecutor from his team was also seen headed into the grand jury area, according to NBC News.

Some observers, remembering the reference to Fitton in the last House Jan. 6 committee hearing, have wondered whether he was there to testify as part of Smith's Jan. 6 investigation. After all, days before the 2020 election, Fitton prepared a statement for Trump, as shared with Trump aides Molly Michael and Dan Scavino, declaring Trump’s victory on the basis of ballots counted “before the Election Day deadline.” (Of course, there are ballots, including those from members of the military serving overseas, that can be lawfully counted after Election Day.)

But I’ve been focused on Fitton’s role in advising Trump in another capacity and one that relates to the other investigation under Smith's purview: How Trump should handle records from his presidency. Throughout litigation that followed the FBI’s search of Mar-a-Lago last August, Trump argued that search was ill-conceived (and potentially unlawful) because, among other reasons, all of the documents seized actually were his personal property. (Unsurprisingly, the Justice Department took issue with that position.)

Trump’s argument rested on a misleading comparison of his conduct to that of another former president; here, Bill Clinton was his foil.

And when Trump’s team briefed his case to the U.S. Court of Appeals for the 11th Circuit, they argued under the Presidential Records Act that the president alone “determines whether a document constitutes a Presidential record or a personal record.” They also asserted that he was still president “when the documents at issue were packed, transported and delivered to” Mar-a-Lago, and therefore, “his decision to retain certain records as personal is entitled to deference, and the records in question are thus presumptively personal.” In other words, as Politico’s Kyle Cheney tweeted, Trump argued that “the mere fact he transported sensitive records to Mar-a-Lago while he was president means he automatically designated them as ‘personal’ while still in office, a designation he says can’t be challenged in court.” 

Yet, as has often been the case before, Trump’s argument rested on a misleading comparison of his conduct to that of another former president; here, Bill Clinton was his foil. And his attempt to analogize his situation to Clinton’s is also where the argument falls apart because Trump isn’t just distorting historical facts; he’s mischaracterizing the ruling and reasoning of a federal district court. 

The documents seized at Mar-a-Lago last August infamously include those found in Trump’s desk drawer, far from the storage room where any and all presidential records were supposedly kept by lock and key. By contrast, the case Trump sees as a natural analog, Judicial Watch, Inc. v. National Archives and Records Administration, is quite literally about Clinton’s sock drawer, where, for years, he kept audio recordings of conversations he had with historian Taylor Branch during his presidency. 

Clinton intended those conversations to serve as an oral history of his time in office, and although Branch wrote a 2009 book based on those conversations and events he observed while at Clinton’s side, the tapes themselves were not provided to the NARA. Judicial Watch, led by Fitton at that time too, then sued, asking the court for a declaration that the tapes were presidential records and an order compelling NARA to reclaim them.

In rejecting Judicial Watch’s request, U.S. District Judge Amy Berman Jackson looked first to the Presidential Records Act, which defines both presidential records and personal records. Yes, as Trump repeatedly noted, the PRA requires that all materials produced or received by a president be categorized as presidential or personal as soon as possible after their creation or receipt. And what constitutes presidential records is incredibly broad: those documents “created or received by the President, his immediate staff, or a unit or individual of the Executive Office of the President whose function is to advise and assist the President, in the course of conducting activities which relate to or have an effect upon the carrying out of the ... [president’s] duties.” By contrast, personal records are those “of a purely private or nonpublic character which do not relate to or have an effect upon” the execution of the president’s duties. 

Yet in ruling that Clinton’s tapes were personal, Jackson was not without further guidance within the statute’s text: The PRA expressly provides that “diaries, journals or other personal notes serving as the functional equivalent of a diary or journal which are not prepared or utilized for ... Government business” are personal. Ultimately, while Judicial Watch lost the case for other reasons, Jackson also flagged that Clinton’s treatment of the tapes was likely correct: “[T]he classification depends not upon what the tapes contain, but what the President prepared them for and what he did with them.” And there was no evidence, she noted, that the materials were circulated beyond Clinton and Branch, “or that they were used ... in the course of transacting official business.”

According to CNN, Fitton then used that case to convince Trump that any and all White House materials Trump retained, whether or not they bore classification markings and whether or not they were used in the official business of his presidency, could be designated as personal. But after reading the case, exactly how he convinced himself or Trump of that is lost on this ex-lawyer.

Maybe on Thursday, a grand jury in D.C. learned how Fitton's misreading of the Clinton case planted the seed of Trump’s willful retention of government records — and his apparent monthslong obstruction of both NARA and DOJ’s investigations. Watch this space.