Meet the Man Behind Trump's Embrace of the Presidential Records Act

Jared Holt

On February 22, the former president filed a motion to dismiss the Mar-a-Lago documents indictment “based on the Presidential Records Act”. In it, he claimed that, as president, he had “unreviewable discretion…to designate the records at issue as personal” and that meant his possession of some of the nation’s most sensitive, top-secret files was not ‘unauthorized’ as described in the indictment.

Clearly, such an assertion is bizarre – the PRA doesn’t give a president carte blanche to designate national defense information as ‘personal’. In fact, it serves to protect such information from being taken or destroyed, by changing their legal ownership from private to public. The documents he’s alleged to have taken aren’t personal, therefore the PRA has no bearing on this case.

But Trump thinks it does, and he thinks this because one man, who is not a lawyer, told him so.

Enter Tom Fitton, president of the right-wing organization Judicial Watch. The group was established in 1994, ostensibly to investigate misconduct by government officials. Its modus operandi involves filing numerous Freedom of Information Act lawsuits, primarily targeting Democrats and climate scientists. The organization is also heavily involved in propagating conspiracy theories, including baseless claims of voter fraud and unhinged stories about the Clinton’s being involved in murdering people.

Fitton became president of Judicial Watch in 1998, despite having no legal background. In 2022, researchers discovered that he was the third-most prolific spreader of election misinformation following Trump’s 2020 loss and he remains a vocal MAGA supporter. (He’s also likely to be one of the unindicted co-conspirators in the Georgia RICO indictment, so his fingerprints are all over Trump’s criminal cases).

Prosecutors revealed this week that Trump’s argument – that he was entitled to take the national defense information he was indicted for as he’d designated everything in his possession as ‘personal’ – was made up after the fact by Tom Fitton, who relayed this line of thinking to the former president. 

On February 22, 2022, following a Washington Post article about attempts by the National Archives and Records Administration (NARA) to retrieve missing information from the Trump Administration, Fitton tweeted about the case, surfacing his claim that “the law allows Trump to tear up documents, shred them, and take documents when he left the White House.” To back this up, he also tweeted a reference to a case that Judicial Watch had been involved with, where it had attempted to force NARA to classify personal audio tapes made by Bill Clinton and an author as ‘presidential’ as opposed to ‘personal’. Judicial Watch lost that case because the tapes were not presidential records – they were recordings of interviews conducted as part of the author’s research for a book. The case is what Trump calls ‘the Clinton socks case’, because the tapes were supposedly kept in Clinton’s sock drawer.

Prosecutors discovered that “immediately after posting” the tweets, Fitton then sent a link to Trump’s post-presidency office, following up a few hours later with details of ‘the Clinton socks case’, Judicial Watch v. NARA. Further to that, Fitton then drafted a statement for Trump, covering all the bases of the former president’s current argument – that the PRA allowed him to take the documents. Trump did not issue the statement and in fact one of his employees informed the former president that what Fitton was pushing was bunk.

Trump, of course, did not want to hear that Fitton’s argument was entirely erroneous and instead took up the idea that he was allowed to keep the documents -  a new line of defense for him given that he’ d first tried out a few others, including that he declassified the documents in his mind and that the FBI had planted the material.

That Trump would disregard his own employee and instead rely on Fitton’s flawed argument is not surprising, but it is concerning. Here are some of Fitton’s other outrageous beliefs:

• The 2020 election was stolen by Smartmatic, following Hugo Chavez’s playbook.

• Biden is not the legitimate president.

• The 2013 protests against the murder of Trayvon Martin were organized by Obama.

• Climate change isn’t real and climate scientists manipulate the data for political reasons.

• Voter fraud is so rampant that is changes the results of elections.

• The FBI needs to be shut down as it’s a “KGB-type operation”.

• Trump is “officially a political prisoner”.

If Trump were to serve another term, Fitton seems a good fit for him in some kind of ‘advisory’ position, given the former president’s tendency to listen to only what he wants to hear. As Rolling Stone reported last year, “Donald Trump can’t stop taking advice from Judicial Watch president (and definitely not a lawyer) Tom Fitton”. The report noted that much of Trump’s obstruction when asked to cooperate and hand the documents back was orchestrated by Fitton. Judicial Watch was also behind attempts to “publicly unmask” the names of people working for Jack Smith, no doubt so that Trump could blast out unfounded conspiracy theories about them on Truth Social.

With a hand in spreading election misinformation and seemingly guiding Trump’s thinking in the documents case, Fitton is a dangerous individual, capable of spearheading lies that undermine democracy. Let’s hope that the real danger is in Trump’s acceptance of the free ‘legal’ advice from someone with a very limited understanding of the law. It would be karma in action if Fitton’s lies ultimately contribute to the former president’s downfall.