Trump docs case may be trial-bound
Judge appears skeptical that former president could legally keep records
FORT PIERCE, FLA. >> A federal judge appeared reluctant Thursday to dismiss the classified documents prosecution of Donald Trump after his lawyers argued for hours that the case trampled on the former president's rights.
As Trump looked on in the courtroom, his attorneys pressed U.S. District Judge Aileen Cannon to throw out the case, arguing he was legally entitled to keep the sensitive records he is charged with illegally retaining after he left the White House.
Trump's lawyers say the Presidential Records Act gave him the authority to designate as personal property the records he took with him to his Mar-a-lago estate in Florida. Prosecutors say those included top-secret information and documents related to nuclear programs and the military capabilities of the U.S. and foreign adversaries.
Cannon, who was nominated to the bench by Trump, didn't immediately rule, but made it clear through her questions that she was skeptical of the defense effort to scuttle one of four criminal cases against the 2024 presumptive Republican presidential nominee. Cannon suggested she seemed inclined to have the disputed issues be decided by a jury.
A prosecutor told Cannon that there are “all sorts of reasons” that Trump's argument is wrong. Prosecutors said the files Trump is charged with possessing are presidential records, not personal ones, and that the statute does not apply to classified and top-secret documents, like those kept at Mar-a-lago.
“The documents charged in the indictment are not personal records. They are not,” said David Harbach, a member of special counsel Jack Smith's team.
“They are nowhere close to it under the definition of the Presidential Records Act.”
Trump sat at the defense table at the federal court in Fort Pierce with his hands clasped, listening intently to the arguments. Smith, who brought the case, was also in the courtroom, but there was no visible interaction between the two men.
The hearing is the second this month in the case in Florida. Cannon heard arguments on March 1 on when to schedule a trial date, but has yet to announce one and gave no indication Thursday on when she might do so. Prosecutors have pressed the judge to set a date for this summer, while Trump’s lawyers are seeking to put it off until after the election.
Trump’s lawyers also argued that the law that underpins the bulk of the charges is too vaguely worded to enforce against a former president. At issue is a law that makes it a crime for an unauthorized person to willfully retain national defense information. That charge forms the basis of 32 of the 40 felony counts against Trump in the case.
Defense lawyer Emil Bove said ambiguity in the statute permits what he called “selective” enforcement by the Justice Department, leading to Trump being charged but enabling others to avoid prosecution. Bove said that includes President Joe Biden, the recent subject of a harshly critical report by special counsel Robert Hur on the president’s handling of classified information.
“The court’s obligation is to strike the statute and say ‘Congress, get it right,’” Bove told Cannon.
Jay Bratt, another prosecutor with Smith’s team, disputed that the statute was unclear.
The judge told Trump’s attorney that striking down a statute — as the defense is seeking — would be “quite an extraordinary step.”
But she also pointedly noted to a prosecutor that no former president has been charged with mishandling classified documents.
Bratt responded that there has never been another situation “remotely similar to this one.”
Trump is accused of intentionally holding onto some of the nation’s most sensitive documents at Mar-a-lago — only returning a fraction of them upon demand by the National Archives. Prosecutors say he urged his lawyer to hide records and to lie to the FBI by saying he no longer was in possession of them and enlisted staff to delete surveillance footage that would show boxes of documents being moved around the property.
It is not surprising that defense lawyers are seeking dismissal of the case based on the Presidential Records Act given that the legal team has repeatedly invoked the statute since the FBI’S August 2022 search of Mar-a-lago.
The law, enacted in 1978, requires presidents upon leaving office to transfer their presidential records to the U.S. government for management — specifically, the National Archives and Records Administration — though they are permitted to retain personal records, including diaries and notes that are purely private and not prepared for government business.
Cannon has suggested in the past that she sees Trump’s status as a former president as distinguishing him from others who have held onto classified records.
After the Trump team sued the Justice Department in 2022 to get his records back, Cannon appointed a special master to conduct an independent review of the documents taken during the FBI’S Mar-a-lago search. That appointment was later overturned by a federal appeals court.
Trump is separately charged in a federal case in Washington with conspiring to overturn the results of the 2020 presidential election. Trump has argued in both federal cases that presidential immunity protects him from prosecution, though Cannon has not agreed to hear arguments on that claim in the documents case. The U.S Supreme Court is scheduled to hear arguments on Trump’s immunity claim in the election interference case next month.