Judge won’t toss Trump’s files case
She agrees ’78 Presidential Records Act is not in play
WASHINGTON — A federal judge refused Thursday to throw out the classified documents prosecution against Donald Trump, turning aside defense arguments that a decades-old law permitted the former president to retain the sensitive records after he left office.
Lawyers for Trump had cited a 1978 statute known as the Presidential Records Act in demanding that the case, one of four against the presumptive Republican nominee, be tossed out before trial. That law requires presidents upon leaving office to turn over presidential records to the federal government but permits them to retain purely personal papers.
Prosecutors on special counsel Jack Smith’s team countered that that law had no relevance to a case concerning the mishandling of classified documents and said the records Trump is alleged to have hoarded at his Mar-aLago estate were unquestionably presidential records, not personal files, and therefore had to be returned to the government when Trump left the White House in January 2021.
U.S. District Judge Aileen Cannon, who heard arguments on the dispute last month CQ DA, permitted the case to proceed in a three-page order that rejected the Trump team claims. She wrote that the indictment makes "no reference to the Presidential Records Act" nor does it "rely on that statute for purposes of stating an offense." The act, she said, "does not provide a pre-trial basis to dismiss" the case.
The ruling represents a modest win for Smith’s team, which has been trying to push the prosecution forward to trial this year while also expressing growing frustration, including earlier this week, with Cannon’s oversight of the case. Other Trump motions to dismiss the indictment remain unresolved by the judge, the trial date is in flux, and additional legal disputes have slowed the progress of the case.
In Thursday’s ruling, Cannon also defended an order from last month that asked lawyers for both sides to formulate potential jury instructions and to respond to two different scenarios in which she appeared to be continuing to entertain Trump’s presidential records argument.
The order drew a sharp rebuke from Smith’s team, with prosecutors in a filing earlier this week calling the premises she laid out “fundamentally flawed” and warning that they were prepared to appeal if she pushed ahead with jury instructions that they considered wrong.
TRUMP REBUFFED IN GEORGIA
The judge overseeing the Georgia election interference case against Trump and others rejected on Thursday arguments by the former president that the indictment seeks to criminalize political speech protected by the First Amendment.
The indictment issued in August by a Fulton County grand jury accused Trump and 18 others of participating in a wide-ranging scheme to illegally try to overturn the 2020 presidential election in Georgia after the Republican incumbent narrowly lost the state to Democrat Joe Biden. Trump’s attorneys argued that all the charges against him involved political speech that is protected even if the speech ends up being false.
But Fulton County Superior Court Judge Scott McAfee wrote that at this pretrial stage he must consider the language of the indictment in a light favorable to the prosecution. The charges do not suggest that Trump and the others are being prosecuted simply for making false statements but rather that they acted willfully and knowingly to harm the government, he wrote.
“Even core political speech addressing matters of public concern is not impenetrable from prosecution if allegedly used to further criminal activity,” the judge wrote.
He added that even lawful acts involving speech protected by the First Amendment can be used to support a charge under Georgia’s anti-racketeering law, which prosecutors used in this case.
But McAfee did leave open the possibility that Trump and others could raise similar arguments “at the appropriate time after the establishment of a factual record.”
Steve Sadow, Trump’s lead attorney in Georgia, said in an email that Trump and the other defendants “respectfully disagree with Judge McAfee’s order and will continue to evaluate their options regarding the First Amendment challenges.” He called it significant that McAfee made it clear they could raise their challenges again later.
A spokesperson for Fulton County District Attorney Fani Willis declined to comment.