President Trump's indictment cites the Espionage Act of 1917 when it should cite the Presidential Records Act of 1978, given precedent set by an Obama-appointed judge adjudicating a records case involving former President Bill Clinton, a top former Reagan official said Tuesday.
Mark Levin, host of "Life, Liberty & Levin" – who served as chief of staff to Attorney General Ed Meese – told Fox News that the so-called Clinton Socks case of 2010 is very relevant to Trump's situation but is left out of legal discussions.
In the case, government transparency watchdog Judicial Watch sued to have access to presidential audiotapes it said Clinton unlawfully retained control of after leaving office in 2001.
The tapes included voiced considerations on whether to fire former CIA Director R. James Woolsey, reasoning behind foreign policy decisions surrounding U.S. involvement in Haiti, and a conversation with then-senior Democratic Rep. William Natcher of Kentucky about why he, Clinton, chose to enter America into NAFTA.
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Judicial Watch President Tom Fitton argued at the time that Clinton's tapes are presidential records by-law, and that they belong to the public, not Clinton – and that the former president "has a vested interest in preventing" their release, citing potential embarrassment or incrimination.
Judge Amy Berman Jackson – an Obama appointee whom Trump notably ridiculed prior to her sentencing of his longtime political ally Roger Stone – ruled that a president is "completely entrusted with the management and even disposal of presidential records during his time in office."
Jackson reportedly added it is hard to argue Congress would want him to have less authority with records he deems to be personal.
On "Hannity," Levin argued that a president "is" the executive branch of government and that all such authority flows from him.
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"The framers created a president. They didn't create a CIA. They didn't create a special counsel. They didn't create an attorney general. They created a president" he said.
"This precedent [originated from] an Obama judge (Berman Jackson) trying to help Clinton in 2012, and the Department of Justice should know all about it. And so should the National Archives. It was the case involving the socks – the sock drawer and Judicial Watch."
Levin offered a synopsis of the Clinton socks case, and concluded that Jackson did not look to the Espionage Act – as Special Counsel Jack Smith has prescribed in Trump's case – but instead the Presidential Records Act -- "or Clinton would be doing 50 years with his wife by now."
Hillary Clinton had her own run-in with the mishandling of classified information – on a private server in her Hudson Valley home, which eventually led then-FBI Director James Comey to recommend against charging her, unlike Trump.
"[Berman Jackson] says the responding agency, the National Archives -- the tapes were Mr. Clinton's personal records, therefore not subject to the Presidential Records Act or the Freedom of Information Act (FOIA). The government's position was that Congress had decided the president and the president alone decides what is presidential record and what isn't."
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Levin said Smith and the Biden Justice Department want to keep talking about the Espionage Act in the case of Trump because it avoids the Clinton Socks precedent under the Presidential Records Act.
"I don't care how many former federal prosecutors and phony experts go on TV because they have a law degree and they think they know something when they know nothing. Most of them spent their lives as ambulance chasers," he fumed.
Levin noted the Espionage Act has never been applied to a current or former president, and that the closest it came was when the president who signed it – Democrat Woodrow Wilson – oversaw the imprisonment of about 2,000 people, including Socialist Party Presidential Candidate Eugene V. Debs utilizing it.
Debs held a rally in Canton, Ohio in 1918 where he defended anti-World War I activists and defended Russians who engaged in the Bolshevik Revolution years earlier.
He was later arrested by U.S. Marshals and charged with 10 counts of violating the year-old Espionage Act.
Debs, who was imprisoned in West Virginia and Georgia, continued his presidential campaign – slamming Wilson, who was not a candidate, and received about 4 percent of the vote as a third-party candidate from behind bars.
Levin cited Debs, saying Wilson "imprisoned" him. Similarly, Trump supporters have accused Biden of trying to jail his political opponent.
"Wilson was a segregationist and a racist -- Joe Biden was a segregationist and racist," he said. "There you have it, a former segregationist and racist, and a past segregationist and racist using the Espionage Act to try and destroy our country."
He added that many presidents, including Democrats Bill Clinton and Lyndon Johnson, have taken classified information with them after they have left office.
Trump himself has called out fellow Republicans like George W. Bush for acting in similar ways, telling a Nevada rally the 43rd president "took millions and millions of documents to a former bowling alley pieced together with what was then an old and broken Chinese restaurant."
However, in that case, Bush's younger brother Jeb dismissed the criticism and proffered the southern colloquialism "bless his heart."
"It's very different than taking documents that may or may not have been appropriate to take," the former Florida governor told "Your World" in October.
