U.S. District Court Judge Aileen Cannon on March 14 heard arguments on two of former President Donald Trump’s several motions to dismiss a case alleging he mishandled classified documents, rejecting one motion by order roughly two hours after court adjourned.
“Defendant’s motion is denied without prejudice,” the judge wrote regarding the motion to dismiss based on unconstitutional vagueness.
Defense attorneys had argued for dismissal of 32 counts regarding mishandling classified documents under the Presidential Records Act (PRA) and for “unconstitutional vagueness,” but during the hearing, Judge Cannon seemed unconvinced these arguments were not better suited to the trial stage of the case. These were only two of several motions to dismissed filed by the defense.
Her order allows the arguments to be raised later “as appropriate in connection with jury-instruction briefing and/or other appropriate motions.”
The judge said the arguments posed warranted “serious consideration,” and the issue “depends too greatly on contested instructional questions about still-fluctuating definitions of statutory terms/phrases as charged, along with at least some disputed factual issues as raised in the Motion.”
Judge Cannon had said it seemed “premature” to bring in facts from outside the indictment pretrial—such as whether the records in President Trump’s possession were “personal records.”
Much of the argument of the day turned into debate over whether President Trump had the right to designate the documents personal, whether he did do so, and whether that designation under the Presidential Records Act would supersede charges based on the Espionage Act.
Last summer, President Trump was charged with 37 counts, along with his valet Walt Nauta. Later, three charges were added related to obstruction, and Mar-a-Lago property manager Carlos De Oliveira was added as a co-defendant. The case came after the FBI’s high-profile raid of Mar-a-Lago in 2022, on the basis that President Trump retained classified documents he had been subpoenaed to return.
Arguments on the two motions frequently bled into a separate motion to dismiss based on selective and vindictive prosecution, which was not on Thursday’s agenda.
Attorneys Emil Bove and Todd Blanche argued for the defense and attorneys David Harbach and Jay Bratt argued for the prosecution. Legal counsel for co-defendants Mr. Nauta and Mr. De Oliveira said they planned to join the motion to dismiss under the PRA but have not filed notice yet.
Personal Records?
The indictment alleges it became a crime for President Trump to have classified documents the day he left office.
Defense attorneys argued that the PRA differentiates between “presidential” and “personal” records at the president’s sole discretion, tasking the National Archives and Records Administration only with archival duties for records a president chooses to return.
The defense’s position is that by taking the documents from the White House, President Trump had designated these records as “personal.”
Prosecutors argued that President Trump never designated the records personal, did not have the ability to do so as a former president, and that even if he did it would not shield him from prosecution.
Mr. Harbach argued there was no record of President Trump designating the records as personal, that he never wrote it down, told anyone, or labeled his boxes personal, which the judge said was not a “fair” standard and certainly could not be taken as an admission of guilt.
Mr. Bratt said the documents contained classified information and were related to the government, and therefore could not be personal records. “Personal” records refer to things such as diary entries, he argued.
Past Presidents
The defense pointed to past presidents whose “personal” diary records contained information related to national security. They argued that if the Espionage Act makes it illegal to possess classified information, then it would be so even if the information was in the form of a diary entry. The distinct lack of prosecution of past presidents on this matter was instructive, they said.
Former President Bill Clinton kept tape records containing military information, which he shared with a biographer. Former President Ronald Reagan’s diaries undisputedly contained classified information.
These records were both “personal” documents and neither president faced charges from the Department of Justice (DOJ), the defense said, arguing that President Trump’s case broke precedent.
Prosecutors said President Clinton’s tapes were not found to contain classified information, but acknowledged that President Reagan did not face prosecution for his personal records, which did include classified information.
They brought up examples of other officials who faced prosecution for retaining classified information, but could not supply examples when pressed by the judge for instances where vice presidents or presidents faced prosecution over retention of classified information.
Judge Cannon asked whether history would then not inform a sitting president of what was acceptable—if past presidents had retained classified information without prosecution, what would lead the next president to believe otherwise? She asked if this would not make it a case of “arbitrary” enforcement.
The defense added that only a president has the authority to designate records personal, not NARA, the DOJ, or the court. They stressed they were not asking the court to make a determination that the records were personal because their position is that President Trump has already done so and this is not a matter subject to judicial review.
Authority
Defense attorneys said that NARA has never before made a criminal referral against a former president, and that President Trump was never informed of a criminal referral.
They argued that the archive has only the ability to request the return of documents, and no authority to retrieve them, but had treated President Trump differently from other presidents.
With past presidents, NARA operated on an honor system, the defense argued. For example, the archive has sent a letter to former President George W. Bush asking whether he had classified information or other documents to return. A spokesperson answered that they did not, and that was the end of the matter.
The defense argued every president since George Washington has taken things from the White House and that Congress had passed the PRA giving presidents discretion to choose what documents to hand over to NARA for public recordkeeping in hopes that records could be archived.
From The Epoch Times
