He referred to the “Clinton Socks” defense in a speech to his supporters at his golf club in Bedminster, New Jersey. The “Clinton Socks” defense is solid, highlighting that former President Bill Clinton and his wife Hillary took government documents home without facing prosecution. The “Clinton Socks” case involved Bill Clinton stuffing 79 audio tape recordings in his sock drawer after his presidency, claiming that they were personal records not subject to the President Records Act of 1978 (PRA), despite allegations that they contained classified information and conversations with foreign leaders.
Michael Bekesha of Judicial Watch, who lost the “Clinton sock drawer” case, opined in the Wall Street Journal that a President could choose what records to keep or return to the National Archives. 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 provide a path for Trump to argue that the records seized from Mar-A-Lago were personal, even if they contained sensitive information.
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The DOJ is familiar with the “Clinton Socks” defense, and 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 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 under the PRA rests solely with the President and that the National Archives does not have any control regarding classification, nor can it seize presidential records.
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Trump cited several arguments in his defense, including that the Espionage Act of 1917, which he is accused of violating, was not intended to apply to presidents. He also claimed that the indictment failed to deal with the PRA itself, and he argued that the Mar-a-Lago raid violated his Fourth Amendment rights to be free from “unreasonable searches and seizures” — seizures that included his passport.
It remains to be seen whether any of these arguments are strong enough to quash the indictment. However, the “Clinton Socks” defense is among the more formidable ones, as evidenced by CNN’s relative silence.
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