What Documents May a President Retain When He Leaves Office?

 Judicial Watch v. NAT. ARCHIVES AND RECORDS ADMIN., 845 F. Supp. 2d 288, (D.C.  2012)

According to plaintiff, President Clinton enlisted historian Taylor Branch to assist him in creating "an oral history of his eight years in office." Compl. ¶ 8. In 2009, Branch published a book entitled, "The Clinton Tapes: Wrestling History with the President," based upon extensive conversations with President Clinton during his tenure in the White House and the events Branch observed when he was in the President's office. See Joe Klein, "Book Review: Bill Session," N.Y. Times (Sept. 25, 2009), http://www.nytimes.com/2009/09/27/ books/review/Klein-t.html. In 2010, plaintiff filed this action. [Dkt. # 1]. Plaintiff avers that from January 20, 1993 to January 20, 2001, Branch recorded seventy-nine audiotapes that "preserved not only President Clinton's thoughts and commentary on contemporaneous events and issues he was facing as president, but, in some instances, recorded actual events such as presidential telephone conversations." Compl. ¶ 9.

Based on Branch's book, plaintiff contends that the recordings captured a verbatim record of President Clinton being President — performing his duties by engaging in conversations while Branch happened to be there with the tape recorder running — as opposed to simply reflecting about the ongoing Presidency with the writer.^[1] The gravamen of the complaint, then, is that the tapes should have been included among the Presidential records 291*291 transferred to the Archivist of the United States at the end of the Clinton presidency, but President Clinton retained them in his personal possession when he left office, and defendant is unable to produce them now. Compl. ¶ 16. The parties agree that the audiotapes are not currently in the government's possession. Mot. to Dismiss Unedited Hr'g Tr. ("Tr.") at 5:14-18, 28:19-29:2 (Oct. 14, 2011). And the former President is not named as a party in this action....

The PRA distinguishes Presidential records from "personal records," defining personal records as "all documentary materials, or any reasonably segregable portion thereof, of a purely private or nonpublic character which do not relate to or have an effect upon the carrying out of the constitutional, statutory, or other official or ceremonial duties of the President." Id. § 2201(3). The PRA 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, or circulated or communicated in the course of, transacting Governmental business" should be treated as personal records. Id. § 2201(3)(A). The PRA requires that all materials produced or received by the President, "to the extent practicable, be categorized as Presidential records or personal records upon their creation or receipt and be filed separately." Id. § 2203(b). 

If the FBI is pursuing still classified documents they may have a legitimate basis for their search.  But it appears that the courts have been reluctant to draw a bright line between personal and official records.