Fort Pierce - Wednesday April 3, 2024: Federal prosecutors in the Fort Pierce classified document case against former President Trump have criticized an order from U.S. District Court Judge Aileen Cannon, warning her that her interpretation of the Presidential Records Act is “fundamentally flawed.”
Last month Judge Cannon heard arguments on two Trump motions to dismiss the case, including that the Presidential Records Act (PRA) permitted him to designate the documents as personal and that he was therefore permitted to retain them. At that hearing the judge appeared skeptical of Trump's position, but she did not immediately rule.
Days later, even through she has not yet set a trial date, Judge Cannon asked the two sides to craft jury instructions based on the following premise - “A president has sole authority under the PRA to categorize records as personal or presidential during his/her presidency. Neither a court nor a jury is permitted to make or review such a categorization decision.” An outgoing president's decision to exclude personal records from those returned to the government, she continued, “constitutes a president's categorization of those records as personal under the PRA.”
Her order appears to accept the ex-president's argument that he was entitled to keep the classified government owned documents under the Presidential Records Act (PRA).
That interpretation of the PRA is wrong, said prosecutors in a response they filed with the court.
“The PRA's distinction between personal and presidential records has no bearing on whether a former President’s possession of documents containing national defense information is authorized under the Espionage Act, and the PRA should play no role in the jury instructions on the elements of Section 793,” they said, citing the statute that makes it a crime to illegally retain national defense information. “Indeed, based on the current record, the PRA should not play any role at trial at all,” they added.
The prosecution maintains that the records Trump took were clearly not personal, and there is no evidence Trump ever designated them as such. They said that the suggestion he did so was “invented" only after it became public that he had taken the documents with him to Mar-a-Lago after leaving office. None of the witnesses the Government intends to present at trial support Trump's argument, they said.
“Not a single one had heard Trump say that he was designating records as personal or that, at the time he caused the transfer of boxes to Mar-a-Lago, he believed that his removal of records amounted to designating them as personal under the PRA," prosecutors wrote. “To the contrary, every witness who was asked this question had never heard such a thing.”
Judge Cannon's order has surprised legal experts and alarmed special counsel Jack Smith's team, which said in a filing late Tuesday that the 1978 Presidential Records Act has no relevance in a case concerning highly classified documents like the ones Trump stored at his Mar-a-Lago estate in Palm Beach. The PRA law, they said, allows former presidents to only retain personnel records from their time in office, but requires them to return all official government records upon leaving office.
Smith's team said that if the judge insists on citing the presidential records law in her jury instructions, she should let the lawyers know as soon as possible so that prosecutors can appeal. The filing reflects the government's continued exasperation at Cannon's handling of the case.
Trump is accused of illegally hoarding classified documents at his Mar-a-Lago estate and obstructing government efforts to retrieve them. He is facing 32 felony counts of willful retention of national defense information in violation of the Espionage Act, 6 felony counts of obstruction-related crimes; and 2 felony counts of false statements
under oath. A total of 40 felony charges. He has entered a plea of not guilty.
Last year, Cannon faced blistering criticism over her decision to grant Trump's request for an independent arbiter to review documents obtained during an FBI search of Mar-a-Lago.
The Trump-appointed judge has yet to rule on multiple defense motions to dismiss the indictment as well as other disagreements between the two sides. The trial date remains unsettled in a felony criminal case against Trump that Smith's team has said features overwhelming evidence. However Judge Cannon's in-action could leave the case un-resolved by the November presidential election.
Trump, the Republican Party's nominee for president in the November 2024 election, is accused of mishandling the classified documents he took. The indictment against him alleges he improperly shared a Pentagon “plan of attack” and a classified map related to a military operation.
The Florida case is among four criminal cases against the former president, who has insisted he did nothing wrong in any of them.
In a separate Trump team filing, defense lawyers renewed their demand that Cannon dismiss the indictment.