Hours after Donald Trump’s Miami arraignment on charges he mishandled state secrets and obstructed justice, he previewed potential defenses, arguing the Presidential Records Act clears him of wrongdoing and attacking the prosecution as an “evil” abuse of power.
“The decision to segregate personal materials from presidential records is made by the president, during the president’s term,” Trump said in a speech to supporters at his New Jersey golf club. “And at the president’s sole discretion.”
It’s the latest trial balloon floated by the former president and his allies as his legal team crafts a strategy to fight the indictment from Special Counsel Jack Smith’s office. The Presidential Records Act argument had been touted by Trump’s lawyers after records were seized at his Mar-a-Lago resort. But Justice Department prosecutors argued that the suggestion he had the power to designate any government record as “personal” would “nullify the statute’s entire purpose.”
The act defines “personal records” as materials that “do not relate to or have an effect upon the carrying out of the constitutional, statutory, or other official or ceremonial duties of the President.” It also doesn’t spell out a requirement for the National Archives to negotiate with an ex-president, despite Trump’s claim of such a rule.
Read More: Trump Tried to Hide Documents, Share Secrets, Indictment Alleges
“The Presidential Records Act is a complete red herring,” said Heidi Kitrosser, a professor at Northwestern University Pritzker School of Law. The law “makes clear that documents that were created or possessed or utilized by a president in furtherance of his office are not his personal property to take with him after he leaves, that they belong to the American people.”
Here are other potential defense arguments Trump has previewed:
Espionage Act Fight
Trump and his supporters have criticized the decision to charge him under the Espionage Act even though there’s no allegation of spying.
The law’s name is misleading – it covers a range of conduct that doesn’t always depend on sharing records with anyone else. Trump is charged under a section that criminalizes “willfully” holding onto national defense information.
National security and First Amendment lawyers in the past have criticized the law as overbroad and pushed for protections for government employees who reveal information related to “important matters of public interest.” But Kitrosser, among the law’s critics, said narrowing it in that way wouldn’t help Trump.
“There’s no evidence this was done in a public-serving way,” she said.
Beyond the spying issue, Trump’s lawyers could contest whether the allegations laid out in the indictment satisfy all elements of “willfully” retaining national defense information.
Selective Prosecution
Trump’s frequent comparisons to past classified document controversies suggest his team is mulling a motion to dismiss the case for “selective prosecution.”
Trump and his supporters have decried the fact that his one-time Democratic rival, former Secretary of State Hillary Clinton, wasn’t charged over her use of a private email server for official business. They’ve also focused on the discovery of classified information at President Joe Biden’s Washington office and Delaware home.
Attorney General Merrick Garland has appointed a separate special counsel to review Biden’s handling of classified documents. Former Vice President Mike Pence recently was told he wouldn’t face charges after he reported finding classified records.
The facts alleged in the Trump indictment differ in significant ways from what’s publicly known about those other situations. Biden and Pence have said that they immediately notified the government and cooperated fully. When former FBI Director James Comey announced Clinton wouldn’t face charges, he said investigators didn’t find evidence she intended to violate the law.
Joan Meyer, a former senior Justice Department official and white-collar defense lawyer, said selective prosecution motions “are almost impossible to win.” Judges are supposed to make an “individual determination” that the facts alleged in an indictment are sufficient, she said.
“The fact that maybe in another circumstance somebody else was not prosecuted, that potentially should have been, is not particularly relevant,” Meyer said.
Evidence Suppression
Trump could renew his objections to the lawfulness of the Mar-a-Lago search warrant through a motion to suppress evidence.
Trump’s team is also expected to consider contesting any evidence that came out of the special counsel’s subpoena for testimony and written work from his attorney Evan Corcoran. Although attorney-client privilege normally protects such information, Washington judges earlier this year held prosecutors had shown the crime-fraud exception applied – that there was evidence Trump tried to use his lawyer to further unlawful conduct.
District judges would typically give at least some deference to previous rulings related to a case before them, Meyer said. But, she added, the findings out of Washington in the Corcoran fight wouldn’t be binding on the judge presiding in Florida — US District Judge Aileen Cannon— if she’s faced with a new motion to suppress.
Prosecutorial Misconduct
Trump allies have signaled he could move to dismiss the case for prosecutorial misconduct on two grounds. The first involves ex-Trump lawyer Tim Parlatore’s public claim that when he appeared before a grand jury in the documents probe, prosecutors improperly tried to pierce attorney-client privilege.
The other concerns a conversation that a lead Justice Department prosecutor, Jay Bratt, reportedly had with Stanley Woodward, an attorney for Trump’s co-defendant Walt Nauta. Former Trump attorney Jim Trusty told CNN last week that Woodward notified a federal judge that Bratt’s comments appeared to tie Woodward’s pending application for a Washington judgeship to his client’s cooperation.
Woodward and the special counsel’s office declined to comment.
Smith said at a press conference announcing the Trump indictment that his team followed “the highest ethical standards.” Although the president nominates judges for Washington’s local courts and nominees must be confirmed by the Senate, the Justice Department typically doesn’t play a significant role in that process.
Speedy Trial
Smith told reporters last week that the government would seek a “speedy trial.”
Under federal law, criminal cases must proceed to trial within 70 days unless judges believe there’s a reason to push out that schedule. But the right to a speedy trial is meant to protect the defendant, said Cheryl Bader, a former federal prosecutor and professor at Fordham University School of Law.
So if Trump’s lawyers ask for more time to review evidence or navigate Trump’s schedule around his presidential campaign and other legal entanglements, the judge will give that weight, she said.
“You don’t want to have an appeal that you pushed the defense team to go to trial before they were ready,” Bader said.
