Lawyers for former President Donald Trump revealed in new court filings that the former president kept classified materials at his Trump Tower in New York City and his estate in New Jersey.
The former president kept the classified documents at those two locations as well as his Mar-a-Lago resort in Florida while he was in office, and also during the months before he was inaugurated in 2017, the filings revealed.
His lawyers were responding to a deadline to support U.S. District Judge Aileen Cannon’s proposed jury instructions.
President Trump, the GOP presumptive presidential nominee for 2024, is facing dozens of felony counts related to alleged mishandling of classified documents, according to an indictment. Part of his defense centers around how he personally designated presidential files as his personal items before he left the White House in early 2021.
In Tuesday’s court filing, his attorneys said that jurors could be told that President Trump had the legal power as president to make those documents his personal belongings.
“President Trump acted as an ‘original classification authority’ while he was President of the United States” to declassify the records, it said, adding that it “means that all classification decisions during his term as President were based on his authority, and that he also had absolute and unreviewable authority to declassify documents and information.”
There also is “evidence relating to former Presidents, Vice Presidents, and other public officials being authorized to possess documents containing classified information without criminal prosecution by the government after they left their positions,” his attorneys continued to say.
“You heard evidence during the trial that President Trump exercised that authority, at times verbally and at times without using formal procedures, while he was President,” the proposed Trump jury instructions read. “I instruct you that those declassification decisions are examples of valid and legally appropriate uses of President Trump’s declassification authority while he was President of the United States.”
Jack Smith’s Response
Also Tuesday, special counsel Jack Smith—who brought the charges against the former president—criticized Judge Cannon and warned her that the jury instructions rest on a “fundamentally flawed legal premise.”Last month, Judge Cannon had asked prosecutors and defense lawyers to formulate proposed jury instructions for most of the charges, asking the lawyers to respond to two different scenarios on whether he was entitled under a statute known as the Presidential Records Act to retain the sensitive documents he is now charged with possessing.
The Smith team wrote that the 1978 law, which requires presidents to return presidential records to the government upon leaving office but permits them to retain purely personal ones, has no relevance in a case concerning highly classified documents.
Those records, prosecutors said, were not personal and there is no evidence President Trump ever designated them as such. They argued that the suggestion he did so was created only after it became public that he had taken with him to Mar-a-Lago after his presidency boxes of records from the White House.
“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.”
As of Wednesday, it’s not clear when the trial would start. Judge Cannon last year set the case for trial on May 20, 2024, but she signaled she would reconsider that date during a March 1 hearing.
The hearing took place as scheduled, but no replacement date was picked.
Last month, the judge heard hours of arguments on two of the dismissal motions on whether President Trump was entitled under the Presidential Records Act to retain the classified documents after he left office and whether the Espionage Act law at the heart of the case was so vague as to be unconstitutional.
Judge Cannon appeared skeptical of the defense assertions and, after the hearing, issued a terse two-page order rejecting the vagueness argument while permitting President Trump to raise it again later. She hasn’t yet ruled on the Presidential Records Act motion that was submitted by the defense.
