Moreover, the ultimate disposition of all the “classified records,” and likely
most of the seized materials, is indisputably governed exclusively by the provisions
of the Presidential Records Act (“PRA”). See 44 U.S.C. §§ 2201, et seq. The PRA
accords any President extraordinary discretion to categorize all his or her records as
either Presidential or personal records, and established case law provides for very
limited judicial oversight over such categorization.
The PRA further contains no
provision authorizing or allowing for any criminal enforcement. Rather, disputes
regarding the disposition of any Presidential record are to be resolved between such
President and the National Archives and Records Administration (“NARA”). Thus, at
best, the Government might ultimately be able to establish certain Presidential
records should be returned to NARA. What is clear regarding all of the seized
materials is that they belong with either Trump (as his personal property
to be returned pursuant to Rule 41(g)) or with NARA, but not with the Department
of Justice.