Special counsel Jack Smith addresses the press about an indictment of former President Donald Trump on August 1, 2023 and Trump speaks to the press at the Manhattan courthouse on October 4, 2023.
In a series of legal filings, special counsel Jack Smith challenges various arguments made by Donald Trump’s defense lawyers in an attempt to dismiss his Espionage Act indictment, including claims related to the Presidential Records Act (PRA).
The PRA, a topic that former Trump White House senior advisor Stephen Miller recently commented on through his legal group. recently chimed in on through his legal group, does not actually do what the former president wants it to, Smith began.
Trump’s reliance on the PRA to dismiss the indictment is incorrect. The PRA does not exempt Trump from the criminal law, entitle him to unilaterally declare highly classified presidential records to be personal records, or shield him from criminal investigations—let alone allow him to obstruct a federal investigation with impunity, the filing said.
Comparing Trump to an alchemist trying to transform materials subject to the PRA into “personal” records suitable for storage in a Mar-a-Lago bathroom and shower. Mar-a-Lago bathroom and shower, Smith noted that executive order 13526 states that classified materials can only be accessed by authorized individuals and must be stored in approved locations.
According to EO 13526, the Superseding Indictment alleges that once Trump left office, he no longer had authorization to possess classified information, he never received a waiver as a former President to possess it, and he stored documents at an unauthorized location.
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Responding to Trump's incorrect argument that the PRA allows a president to unilaterally remove presidential records from the White House in a manner that thwarts the operation of the PRA, Smith pointed to executive order 13526.
The PRA does not provide any specific exception to EO 13526 that would authorize Trump to keep classified government records at Mar-a-Lago, Smith wrote.
The Hur Report reached the same conclusion: “We therefore decline to adopt the argument that compliance with the [PRA] authorizes former presidents and vice presidents to retain national defense information in unsecured and unapproved locations.”
The issues at play here are different from former President Ronald Reagan’s diaries and former President Bill Clinton’s memoirs, as Trump is accused of willfully retaining national defense information he played no role in creating and which do not reflect his personal thoughts, according to Smith.
Trump alludes to DOJ’s inaction over former President Reagan’s diaries, which he retained after leaving office and which contained classified information. ECF No. 327 at 7. But DOJ’s decisions decades ago with respect to a former President’s diaries establish no legal precedent for the interaction of the PRA and Executive Orders governing classified documents. This case involves classified records created by intelligence and military officials for highly sensitive Presidential briefings. Trump did not create them, they do not reflect his personal thoughts, they came into his possession only through his official duties, and (except for one charged document) bear classification markings. They have no resemblance to diaries. See 44 U.S.C. § 2201(3)(A) (defining “personal records” to include “diaries, journals or other 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 Government business”). In any event, the Reagan example does not override EO 13526, and that text does not authorize Trump’s possession and storage of classified documents. Nothing in the PRA calls into question the Section 793(e) counts.
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To reach a contrary conclusion, Trump relies on a statement made during oral argument before the district court in Judicial Watch, Inc. v. NARA, 845 F. Supp. 2d 288 (D.D.C. 2012). That case stemmed from a decision made by President Clinton to “enlist[] historian Taylor Branch to assist him in creating ‘an oral history of his eight years in office.'” Id. at 290 (quoting complaint). President Clinton “planned to make first use of [the taped conversations] for his memoirs, then eventually to release the transcripts at his presidential library.” Taylor Branch, The Clinton Tapes: Wrestling History with the President 13 (Simon & Schuster 2009).
After Branch published his book, a non-profit organization, Judicial Watch, sent a FOIA request to the Clinton Library for access to the tapes. Judicial Watch, 845 F. Supp. 2d at 292. The Supervisory Archivist for the Clinton Library responded that “the requested tapes ‘are not [P]residential records and therefore are not subject to request under the PRA and FOIA.'” Id. (quoting complaint). When Judicial Watch appealed to NARA, the Deputy Archivist noted that NARA had never had custody over the tapes. Id. at 292-93. The Deputy Archivist added that, to the extent that the appeal asked NARA to “make a further determination that the materials in question ought to be considered ‘presidential records’ within the meaning of the PRA, we decline to do so.” Id. at 293 (quoting the letter). The Deputy Archivist “‘consider[ed] the nature of the audio tapes, if they were created with the intent of their use as government materials, and whether or not they were circulated within the Administration or relied on as policy documents.’” Id. Based on the available facts, the Deputy Archivist did “‘not believe the materials in question fall within the ambit of the PRA,'” and she was instead “‘of the opinion that the audio tapes created by Taylor Branch are personal records of President Clinton as defined by the PRA.'”
Smith argued that Trump's use of the PRA to dismiss the case was not supported by the law and lacked real-world evidence. Smith quickly dealt with arguments supported by Stephen Miller. for getting rid of the prosecution.
Smith said that Trump and Miller's claims about the National Archives' improper referral to the DOJ were fundamentally incorrect.
Finally, Trump contends that NARA made an improper referral to DOJ on February 9, 2022, and that the FBI therefore had no basis to “predicate” an investigation of his unauthorized possession of classified government documents. He claims that, as a result, the obstruction and false-statement allegations in Counts 33-42 must be dismissed. Each aspect of that argument is fundamentally wrong. Nothing in the PRA preempts the application of federal criminal law or divests the Government of criminal investigative authorities, and in any event, an individual’s claim that the Government lacked authority to investigate provides no defense to charges for obstructing its investigation.
Even if Trump's PRA argument was valid, which it is not, he still did not have the right to obstruct a grand jury investigation, the special counsel added.
Trump cannot avoid alleged obstruction charges by claiming that the entities had no authority to investigate, Smith pointed out.
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In separate submissions, Smith responded to the Trump team's comparison of Hillary Clinton and reiterated his concerns regarding the privacy interests of ancillary third parties mentioned in various materials and the safety of witnesses if their identities are made public, as requested by the defense.
Indeed, the Government has shown that the limited sealing or redaction proposed here not only meets the good cause standard but also the higher standard of being 'necessitated by a compelling governmental interest and narrowly tailored to serve that interest,'” Smith said.
Read the filing related to the PRA here.