Attorneys with special counsel Jack Smith’s office argued that former President Donald Trump had no authorization to retain classified information after leaving office, even if all of those documents had been categorized as “personal” under the Presidential Records Act (PRA).
“The PRA does not authorize the possession of classified information by a former President; indeed, it does not address the subject of classified information at all.”
PRA, passed in 1978, stipulates that all records created and received by the president should be designated “presidential records” or “personal records” and filed separately.
Unauthorized possession under this statute is unrelated to whether the documents have been classified as “personal,” prosecutors argued. They added that the records were “indisputably presidential, not personal” besides.
“Nothing in the PRA leaves it to a President to make unilateral, unreviewable, and perpetually binding decisions to remove presidential records from the White House in a manner that thwarts the operation of the PRA—a statute designed to ensure that presidential records are the property of the United States and that they are preserved for the people,” the filing reads.
President Trump was originally charged with 37 counts, and three counts were later added. Thirty-two of the charges are for “willful retention of national defense information,” the others are related to obstruction and concealment of records.
Prosecutors also argued that the premise of the defense was that President Trump was “exempt” from the law.
“Trump’s claims rest on three fundamental errors, all of which reflect his view that, as a former President, the Nation’s laws and principles of accountability that govern every other citizen do not apply to him,” the filing reads.
President Trump’s attorneys had also argued that any dispute between the former president and the National Archives and Records Administration (NARA), which had requested documents from President Trump, would be a civil matter not subject to criminal prosecution.
Prosecutors pushed back, painting the argument as one of President Trump contending he was above the law.
Authorization
The parties have argued over the meaning of “authorization” and whether President Trump had it.Prosecutors argued that in their indictment, “without authorization” means “without official permission or approval” and that authorization would stem from a 2009 executive order outlining who is qualified to access classified information.
“For former Presidents, the need-to-know requirement can be waived but only if an official ‘determines in writing that access is consistent with the interest of national security’; ’takes appropriate steps to protect classified information from unauthorized disclosure or compromise‘; and ’ensures that the information is safeguarded in a manner consistent with this order,'” the prosecutors wrote.
Personal?
Prosecutors also argue that President Trump viewed the documents as presidential records rather than personal records or “documentary materials” under PRA, which are “of a purely private or nonpublic character which 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.”In January 2022, President Trump gave 15 boxes of documents to NARA, “in an ordinary and routine process to ensure the preservation of my legacy and in accordance with the Presidential Records Act.”
Prosecutors say this exchange refuted “any suggestion that he viewed them as ‘personal records.’”
“His reliance on the PRA therefore has no basis in the statute, the Superseding Indictment, or any real-world facts,” they wrote.
President Trump’s attorneys argue that PRA precludes judicial review of a president’s “recordkeeping practices and decisions,’ including [his] decision to designate materials as Personal Records.”
Prosecutors argued that presidents do not have “carte blanche to call patently presidential records ‘personal records,’” as it would “defeat the purpose of the PRA to ensure that presidential records remained public property.
