Trump has never actually represented that he, in fact, designated the classified documents at issue as personal.
Trump has never actually represented that he, in fact, designated the classified documents at issue as personal.
Author’s Note: This is the second of a two-column series on this week’s controversy over the Florida federal prosecution of former president Donald Trump, which featured a sharp exchange between special counsel Jack Smith and Judge Aileen Cannon.
I n part one of this two-column series, we covered the sharp exchange between Biden Justice Department special counsel Jack Smith and Trump-appointed federal judge Aileen Cannon over Trump’s main defense in the Mar-a-Lago documents case — his claim that what prosecutors charge as 32 felony counts of unlawful retention of national-defense intelligence is excused by the Presidential Records Act (PRA). In a nutshell, Trump seeks to posit that (a) he must be deemed to have designated the documents as his personal records under the PRA (even though he has not explained when or how he did that), and (b) no court or jury has legal authority to second-guess this designation that — unbeknownst to his White House staff — he supposedly made as president.
Smith counters not only that the designation would be legally untenable but that, in reality, it never happened. That is, Trump made no such designation; instead, he concocted a PRA defense long after he had taken the documents and was out of office, and even now won’t commit to it by explaining when and how he supposedly designated the intelligence reports as personal records.
Trump’s PRA theory of the case is espoused in the second not-so-hypothetical scenario Judge Cannon directed the parties to address in the order that prompted Smith’s bracing response (to which, as we’ve seen, Cannon took offense). If that scenario were found to be an accurate statement of the law (which Cannon instructed the parties to assume for argument’s sake), Trump would have to be acquitted.
In their responsive brief, the prosecutors convincingly argued that the defense position is nonsensical. In so doing, they pointedly reminded Cannon of the Eleventh Circuit’s reversals (here and here) of her deeply flawed 2022 decisions (a) temporarily blocking prosecutors from access to the 103 classified documents seized by the FBI at Mar-a-Lago, and (b) granting Trump a “special master” to sort through the thousands of documents found during the search. In the former decision, the Circuit made the following excerpted observations regarding Executive Order (EO) 13256, which we discussed in part one of this series (and note: I am including the Circuit’s citation, which traces the connection of the EO to statutory law, because some Trump advocates contend that, as president, he could not be bound by a mere executive order; to the contrary, this is an EO that Congress statutorily directed, that it has appended to §3161 of federal classified-information law, and that the Eleventh Circuit — a superior court Judge Cannon is bound to follow — has treated as having the force of law):
For our part, we cannot discern why [Trump] would have an individual interest in or need for any of the one-hundred documents with classification markings. Classified documents are marked to show they are classified, for instance, with their classification level. Classified National Security Information, Exec. Order No. 13,526, §1.6, 3 C.F.R. 298, 301 (2009 Comp.), reprinted in 50 U.S.C. §3161 app. at 290-301. They are “owned by, produced by or for, or . . . under the control of the United States Government.” Id. §1.1. And they include information the “unauthorized disclosure [of which] could reasonably be expected to cause identifiable or describable damage to the national security.” Id. §1.4.
The Eleventh Circuit added, in conclusion, that Trump “does not have a possessory interest in the documents at issue,” and that “he neither owns nor has a personal interest in” them. Smith’s message to Cannon is clear: She must not rule that the disputed documents are Trump’s personal records given that a higher court she is required to follow emphatically held that they are not (in the course, ahem, of finding her in error).
Did He or Didn’t He?
What about Trump’s claim that his phantom designation of the documents as personal records may not be reviewed by a court? The government counters that Trump has previously conceded that a court would have authority to review a president’s designation of presidential records as personal if the Justice Department had proceeded by a civil suit. Moreover, Trump’s point in seeking the special master was to have the court distinguish presidential records, which are property of the government, from documents containing “highly personal information, such as diaries, journals, and medical records” (emphasis added). At the time, Trump never suggested that classified intelligence-agency reports were such “personal” records, or that a court had no authority to decide whether they were.
Most significantly, Smith points out that Trump has never actually represented that he, in fact, designated the documents at issue as personal.
On this point, prosecutors note that they’ve acknowledged the “theoretical possibility” that Trump could posit a state-of-mind defense “that he did not act willfully because he in fact designated the documents as personal and in fact believed that the PRA provided him with authorization to keep and withhold the documents” (emphasis in original). But that abstract theory could become a defense in reality only if Trump had evidence that he actually designated the documents as personal.
Apparently, he does not. Trump has never affirmatively claimed that he made a designation. He has submitted no affidavit to that effect, nor is there any written evidence suggesting any such thing. (The PRA requires presidential decisions to be recorded in writing — see §2203(a).) Plus, Smith has interviewed members of Trump’s staff and none was familiar with any such designation.
Indeed, the most interesting part of the prosecutors’ submission is the explanation of how Trump stumbled upon his PRA personal-records defense. For over a year, while corresponding with the National Archives and Records Administration (NARA), Trump and his team repeatedly acknowledged that the documents he retained at Mar-a-Lago were “presidential records” (i.e., they made no personal-records claim). Then, after the Washington Post reported on the ongoing dispute between Trump and NARA, Trump was alerted to a theory that Judicial Watch (JW) president Tom Fitton first publicized in tweets on February 8, 2022. To wit, Fitton contended that presidents have authority to designate as personal any materials they want to, and that a court had ruled that such designations were unreviewable.
As I’ve related, JW had been the plaintiff in what Trump calls the “Clinton Sock Drawer” case — Judicial Watch v. National Archives and Records Administration. JW unsuccessfully sought to compel NARA to retrieve tape recordings Clinton made during his presidency (the tapes facilitated the eventual publication of a history of Clinton’s White House years). I admire the invaluable work Fitton and JW do in forcing government officials to comply with transparency laws, but he is not a lawyer and JW has overinterpreted the meaning and significance of the case.
First, as Smith notes, there is evidence that, while he was president, Clinton actually did designate the tapes as personal records (distinguishing his situation from Trump’s, where there is no evidence of a designation). Second, the case involved tapes created by the president, not agency intelligence reports, the handling of which is governed by EO 13256. And third, the case merely held that NARA lacked enforcement authority under the PRA; it did not say that no government agency had enforcement authority (a question that was not before the court). Hence, the ruling in no way undermined the Justice Department’s authority to investigate and prosecute potential violations of the law. (Needless to say, the Obama Justice Department had no interest in investigating former president Clinton a decade after he’d left office; but it undoubtedly had the authority to conduct such an investigation had it chosen to do so.) Moreover, the Clinton Sock Drawer case is a lower-court decision by Judge Amy Berman Jackson, an Obama appointee in the District of Columbia; even if it helped Trump (it doesn’t), it would not be binding on Judge Cannon of the Southern District of Florida — much less on the Eleventh Circuit or the Supreme Court.
In any event, the government discloses that employees from Trump’s post-presidential office disagreed with Fitton’s suggestion that Trump could and should claim the materials then in his possession were private records. Trump made a fleeting public statement two days after Fitton’s tweets, claiming he’d been advised he was “under no obligation” to return materials to the government “based on various legal rulings.” Prosecutors say that statement surprised Trump’s post-presidency employees because he’d never espoused that theory before. But it wasn’t seriously averred at the time; in fact, Trump’s office decided not to issue a public statement suggested by Fitton, and his lawyers and staff continued to refer to the materials in his possession as “presidential records” — never claiming they were “private records.”
In May 2022, when a grand-jury subpoena was issued demanding that Trump surrender documents in his possession marked classified, Trump purported to comply with the subpoena. Though he withheld a number of the documents (deceptively, Smith alleges), Trump neither moved to quash the subpoena nor otherwise claimed that he had designated the documents as personal records while he was president.
Smith concludes that it was not until February 22, 2024 — over three years after he’d left office, and over six months after the second indictment was filed in the Florida case — that Trump first claimed the documents should be deemed “personal.” And even then, he did not represent that he had designated them as such. Rather, he seized on the fact that the superseding indictment alleges that he “caused” the documents to be sent to Mar-a-Lago; this act, Trump’s lawyers asserted, should be treated by the court as implying that Trump must have designated the documents as personal. The former president, however, has still never formally claimed that he actually did that, and no evidence that he did has been produced.
Conclusion
In sum, prosecutors argue that (a) Trump hasn’t made a designation claim because he never actually designated the documents as personal records; (b) the documents, in any event, are patently not personal records; (c) Trump has elsewhere conceded that a court has the authority to review a claim that presidential records are personal; (d) a claim that the documents are personal records would not be a defense against the Espionage Act charge of unlawfully retaining national-defense information; and (e) the Eleventh Circuit appellate court has made clear that the documents at issue are the property of the United States, not Trump’s personal property.
Smith’s submission is a useful reminder that, while the Democrats’ lawfare crusade includes some truly absurd prosecutions against Trump (such as the hush-money case scheduled to start trial in Manhattan on April 15), the Mar-a-Lago documents case is, and has always been, a grave matter that poses the most serious criminal jeopardy to the former president.
One can argue that Trump is being selectively prosecuted. I agree that he is, and that it’s particularly unfair after a different special prosecutor declined to recommend an indictment against President Biden, whose classified-information offenses were also gravely serious. It simply cannot be credibly argued, however, that the Mar-a-Lago prosecution of Trump is frivolous. The indictment sets forth real crimes and the evidence appears to be quite strong.