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(Reuters) - If you believe the most ardent defenders of newly indicted former president Donald Trump, theres a silver bullet hiding in Bill Clintons sock drawer.

The reference to Clintons socks, which has cropped up not just in the former presidents Truth Social feed and at conservative news outlets but even in Trump court filings, stems from a 13-year-old case in which the right-leaning nonprofit Judicial Watch sought access to 79 audio tape recordings of Clinton interviews conducted by the historian Taylor Branch while Clinton was in office.

During his presidency, according to GQ magazine in a 2009 Q&A with Branch, Clinton squirreled away the cassettes in his sock drawer. But for Trumps purposes, what matters is Clintons handling of the tapes after he left office: Clinton designated the recordings as personal records, not official presidential records, that were therefore not required to be turned over to the National Archives and Records Administration under the Presidential Records Act.

Judicial Watch sued over that designation, arguing that the tapes captured classified information including Clinton conversations with foreign leaders.

But in a 2012 opinion, the trial judge overseeing Judicial Watchs lawsuit ruled that even if the tapes should have been designated to be presidential records, she could not order the National Archives to recategorize them.

The [Presidential Records Act] does not confer any mandatory or even discretional authority on the archivist, wrote U.S. District Judge Amy Berman Jackson in that 2012 ruling. Under the statute, this responsibility is left solely to the president.

That language, as Ill explain, has emboldened Trump supporters who contend that under Jackson's analysis, the Justice Department had no authority to seize documents from Mar-a-Lago.

That theory is vigorously disputed by national security experts, including former National Archives litigation director Jason Baron, who is now a professor at the University of Maryland, and Bradley Moss of the Mark S. Zaid law firm.

Both Baron and Moss told me by email that there are clear distinctions between the audiotapes at issue in the Clinton case and the classified records in the Trump criminal case.

The Clinton tapes, Baron said, were in the nature of a diary or journal in recorded form, fitting the definition of a personal record in the Presidential Records Act. But the documents with classified markings that were seized from Mar-a-Lago, Baron said, were official government records that should never have been transferred out of the government's hands.

Moreover, Moss said, the question of whether the documents were personal or presidential records is beside the point in a case involving the Espionage Act, like the one against Trump.

Whether as a presidential record or a personal record, the records at issue in this indictment still have classification markings and contain information relating to the national defense, he said.

Trump defense counsel Todd Blanche did not immediately respond to a query sent to his law firm.

Judicial Watchs Tom Fitton nevertheless maintained in an interview on Friday that Jacksons opinion in the Clinton case shows Trump had unfettered power to designate documents as personal records outside of the reach of the National Archives.

The strong opinion from the court says the president has prerogatives that cannot be second-guessed, Fitton said. These are not presidential records, he added. These are personal records.

Under Fittons theory, Trump who has said he is innocent of all wrongdoing -- cant be criminally liable for refusing to turn over documents he designated to be personal. Trumps attorneys posited a similar argument in a brief last November to a special master appointed to review the documents seized from Mar-a-Lago.

The Presidential Records Act, Trumps brief said, gave Trump the sole authority to decide how to categorize his records. When he made a designation decision, he was president of the United States; his decision to retain certain records as personal is entitled to deference, and the records in question are thus presumptively personal, the brief said. (The merits of that argument were never decided because the 11th U.S. Circuit Court of Appeals held in December that the special master should not have been appointed.)

Fitton told me he explained his Presidential Records Act theory to the Washington, D.C., grand jury in the Trump document case last winter. Fitton said prosecutors seemed to use his four-hour grand jury session to sus out Trumps potential defense.

Special counsel Jack Smith and his team, Fitton joked, probably didnt think much of it hence the indictment.

It nevertheless seems likely that Fitton and other Trump allies will continue to use the sock drawer case to argue that the Justice Department is selectively prosecuting the former president.

Fitton, for instance, accused the Justice Department of flipping its position on presidential discretion under the Presidential Record Act to go after Trump. In the Clinton case, he said, the Justice Department argued that the Archive was not empowered to recategorize material that Clinton had designated to be a personal record. The department, Fitton said, abandoned that stance when it seized Trump's documents.

Its so outrageous, he said. I think this is a substantial issue.

That argument could have political salience among Trump backers asserting that the Justice Department has been weaponized to pursue the former president. But as a matter of law, said professor Margaret Kwoka of Ohio State University, Jacksons ruling in the Judicial Watch case isnt going to be much help for Trump. These are completely different kinds of records, she said. And there are different legal obligations when it comes to the handling of classified records.

In other words, for a former president accused of repeatedly violating the Espionage Act, the sock drawer case is probably more of a red herring than a silver bullet.

Read more:

Trump risked national secrets, US prosecutors allege in indictment

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Alison Frankel has covered high-stakes commercial litigation as a columnist for Reuters since 2011. A Dartmouth college graduate, she has worked as a journalist in New York covering the legal industry and the law for more than three decades. Before joining Reuters, she was a writer and editor at The American Lawyer. Frankel is the author of Double Eagle: The Epic Story of the Worlds Most Valuable Coin.

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