Judge Denies One Motion to Dismiss Trump Documents Case
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.
Her order allows the arguments to be raised later “as appropriate in connection with jury-instruction briefing and/or other appropriate motions.”
Trump Leaves, Court in Recess
Judge Cannon said at the end of the hearing that she would rule on these two motions “promptly.”
—T.J. Muscaro
Prosecutors Say They Are Not ‘Puppets’ of Biden Admin
Prosecuting attorneys also asserted that they were not “puppets” of the Biden administration, they were a special arm of the DOJ.
—T.J. Muscaro
Espionage Act Versus Presidential Records Act
The judge asked the parties whether the defense’s reading of the PRA made it so the statute superseded the Espionage Act, which makes the unauthorized possession of classified information illegal.
Prosecutors had argued that the defense’s interpretation that presidents could designate any records personal effectively “guts” the PRA, which was intended to preserve presidential records for the public.
The defense said that was not what they were arguing, and that if the prosecutors are saying the Espionage Act applies to personal records then it would have to apply to diaries as well so long as it contained classified information, such as in the cases of President Clinton and President Reagan. They argued that if Congress really wanted to change that law they could.
—Jacob Burg
Who Designates Records ‘Personal’?
The defense said neither the DOJ nor NARA have the authority to designate records “personal” versus “presidential,” and argued they were not asking the court to decide either because President Trump had already done so.
They pointed to NARA’s behavior with past presidents. For example, the archive sent a letter to President George W. Bush after he left office asking if he had classified information to return, and a spokesperson said they checked and did not.
Attorneys argued that NARA had operated on an honor system, and the situation with President Trump broke precedent.
Does NARA Have Authority?
Defense attorneys argued that presidents since George Washington have taken things out of the White House, and the Presidential Records Acts allows for these records to be kept at home.
The defense’s position is that Congress, in passing the PRA, gave presidents the discretion to choose what documents to return to National Archives and Records Administration (NARA) for public recordkeeping in hopes they would send back to the archives.
The NARA is an archive tasked with recordkeeping, and has no authority to designate records “personal” or “presidential,” the defense argued. This discretion has always been the domain of the president.
The defense questioned, if NARA really had the authority to designate records personal or not, why they waited so long to indict President Trump and claimed the case was politically motivated. The arguments overlapped with another motion to dismiss, based on selective and vindictive prosecution, which was not slated for the hearing today.
The judge said this reading of the PRA would “gut” the statute altogether.
The defense argued that the current administration agrees with this position on NARA—that the archive can only request the return of documents, but has no authority to retrieve them. Regarding President Clinton and President Reagan, both NARA and the DOJ took the position that they had no say over the presidents’ retention to documents.
The defense added that NARA has never before made a criminal referral against a former president, and that President Trump was never informed of a criminal referral.
—T.J. Muscaro
Break
After a break, the court will resume with an afternoon session on the motion to dismissed based on the Presidential Records Act.
—T.J. Muscaro
Prosecutors Argue Trump’s Public Statements Were ‘Fair Notice’
Prosecutors had pointed to public statements President Trump made as signs that he “knew” that his retention of the documents was illegal, including comments he made about Hillary Clinton and prosecution over retaining government information on a private server.
Defense attorneys argued this did not meet the “fair notice” standard.
In the motion to dismiss for unconstitutional vagueness, the defense would have to show that it is not clear what crime President Trump is being prosecuted for. They argued that President Trump followed longstanding procedure guiding other officials on the use of classified information.
The defense and judge seemed to disagree on how far the court would need to go in striking down the statute.
Mr. Blanche argued that a vague law was no law at all, and that courts could not rewrite statutes to save them.
Judge Cannon drew a line in that courts could certainly interpret laws.
—T.J. Muscaro
Judge Asks if Case Is ‘Arbitrary’ Enforcement
Judge Cannon pressed the prosecution to address cases concerning past presidents and vice presidents after Mr. Bratt brought up other officials being prosecuted for retaining classified information.
She asked whether history would not then 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.
Mr. Bratt could not name an example. He argued that President Clinton’s tapes did not contain classified information.
Judge Cannon responded that President Reagan’s tapes undisputedly contained classified information.
Mr. Bratt acknowledged that was so, saying President Reagan was the first president to do so after the Presidential Records Act was passed.
—Jacob Burg
DOJ: Presidents Not Given ‘Security Clearance’
Mr. Bratt said that security clearance isn’t specifically given to a president, so there was no issue of “clearance” at any point.
He said presidents instead get “lawful access” to classified information during their time in office, but this only allows them to view the information at work, and not to take them home “and put them in his basement.”
“Certainly, certainly,” the judge said, seeming to side with the prosecutors on the idea that Mar-a-Lago was a residence and not, as the defense argued, an authorized space for classified documents as President Trump was allowed to be briefed on sensitive matters there.
“The lawful access ends when the presidency ends,” Mr. Bratt argued.
—Jacob Burg
Judge Asks Why Case Wasn’t Investigated the Day Trump Left Office
Judge Cannon took issue with the timeline, asking why the investigation wasn’t opened the day after President Trump left office if that was the moment it became illegal for him to have the documents.
Mr. Bratt argued that President Trump could have realized and returned the documents later.
The judge asked if there was an official person designated to receive the return of these documents, and Mr. Bratt said that even if President Trump had given the documents to a Republican member of Congress, this case probably would have never been brought. It would not have been returned to the correct person, but he would have sought to return them, he argued.
—Jacob Burg
Prosecutors Say Trump Did Not Designate Records Personal
Jay Bratt, arguing for the prosecution, argued that President Trump could not have designated the classified documents as personal records.
He pointed to a recording of President Trump saying, after he left office, referring to a stack of classified documents that he could have declassified but he hadn’t. Mr. Bratt argued this was an admission that the documents had not been designated “personal.”
Mr. Bratt argued that the Presidential Records Act allows presidents to deem personal correspondence or records as “personal,” and official documents related to the government would be, by definition, “presidential.”
—Jacob Burg
‘Count 19’ Issue Shows No Process to Remove Security Clearance
In the motions, attorneys had specified that count 19 of the indictment—which charges President Trump with retaining a specific document or set of documents—should be struck because documents produced by the DOJ in discovery showed that President Trump in fact retained the security clearance needed to have the count 19 documents even after he was indicted.
Judge Cannon asked if there was an official process to transition or remove a former president’s clearance, and defense attorneys said there was none, and the removal, if it happens at all, is “inconsistent.”
She asked the defense if other officials would run afoul of what the DOJ says is illegal in President Trump’s case.
“Absolutely,” Mr. Blanche said.
—T.J. Muscaro
‘Extremely Problematic’ Lack of Definition: Trump Attorney
Judge Cannon pressed the defense on what their definition of “unauthorized” was.
“Judge, I don’t have one,” Mr. Blanche responded, frustrating the judge.
The judge had tried to get at who would be entitled to receive classified documents, and Mr. Blanche said there was an “extremely problematic” lack of legal definition for terms like “need to know” when it comes to classified information, as it varies case by case.
The judge said the indictment alleges that it became a crime the day after President Trump left office for him to have the documents, whether or not he designated them personal.
Mr. Blanche sought to draw another parallel to President Biden’s retention of classified documents, saying the DOJ chose not to prosecute because they didn’t determine there was a crime, and so the retention issue should not be a crime in President Trump’s case either.”
Trump Attorney Compares Case to Clinton, Reagan, Biden
Mr. Blanche said past presidents Bill Clinton and Ronald Reagan, and President Joe Biden’s situations were “parallel” to the current case.
All had retained documents after their presidency, Mr. Blanche argued, and the Department of Justice was “complicit” and chose not to prosecute. He said it was “unspeakable” that the DOJ approved that yet are prosecuting this case.
President Clinton had shared tapes containing military information with his biographer, Mr. Blanche pointed out. The judge asked whether these tapes contained classified information, but Mr. Blanche did not know.
—Jacob Burg
Trump Attorney: ‘These Charges Must be Struck’
U.S. District Judge Aileen Cannon started with the motion to dismiss based on unconstitutional vagueness.
“These charges must be struck and dismissed,” said Todd Blanche, attorney for President Trump.
The judge questioned whether the motion was “premature” as it brings in facts outside the indictment, but Mr. Blanche said other cases have done so as well.
Trump Arrives at Courthouse
Former President Donald Trump’s motorcade pulled up to the Florida courthouse to cheers from supporters and chants of “Trump, Trump, Trump.”
As with most Trump court appearances, fans, protestors, and press tend to turn out in droves, making for a lively event.
Today, the tailgaters had set up early, playing upbeat music and holding signs like “Florida is Trump Country.”
‘Unauthorized’ Possession?
Several of the arguments today turn on the interpretation of the word “unauthorized.”
Prosecutors argue that under the Espionage Act, President Trump’s “unauthorized” possession of classified documents constitutes a serious felony.
Defense attorneys argue that under the Presidential Records Act, President Trump certainly had the ability to designate as personal all the documents he retained, so he was in no way “unauthorized” to possess them.
They additionally argue that the prosecutors have construed “unauthorized” in such a vague way that the charges have become unconstitutional. Courts have held that criminal law must explicitly state the punishable act, or they are otherwise void for vagueness.
The motions at hand may require the judge to wade into issues of prosecutorial discretion.
Trump Expected to Attend Florida Hearing on Motions to Dismiss Documents Case
FORT PIERCE, Fla.—Roughly 24 hours after a Georgia judge dropped some of the charges filed against him there, former President Donald Trump’s attorneys will argue in a Florida court that the federal classified documents case should be thrown out.
On March 14, President Trump is expected to appear before U.S. District Judge Aileen Cannon in Fort Pierce, Florida, as his attorneys argue two of the four motions they filed to dismiss charges against him. One motion argues that 32 charges should be dropped due to “unconstitutional vagueness,” and the other argues the entire superseding indictment should be thrown out pursuant to the Presidential Records Act (PRA).
National security files were routinely taken by past presidents, President Trump’s attorneys said in their argument for unconstitutional vagueness, “and no one suggested that their possession and retention was ‘unauthorized’ as discussed in President Trump’s motion relating to selective and vindictive prosecution.”
The indictment came last year when President Trump, his valet Walt Nauta, and his Mar-a-Lago property manager Carlos De Oliveira were charged after the Department of Justice (DOJ) alleged he mishandled classified documents, which he retained from his time in the White House, in his Mar-a-Lago residence in Palm Beach, Florida.
The DOJ’s prosecution team for this case, led by special counsel Jack Smith, vehemently opposed both of these motions to dismiss and will also appear at the Alto Lee Adams Sr. Courthouse to argue their side. They refrained from calling him “President Trump” in their written arguments.
“Trump is charged with unauthorized possession and willful retention of national defense information,” the prosecution said in its opposition to the vagueness argument. “The statute’s prohibitions are clear. As a former President, Trump could not have failed to understand the paramount importance of protecting the Nation’s national-security and military secrets, including the obligations not to take unauthorized possession of, or willfully retain national defense information.”
Presidential Records Act
On Feb. 22, the former president and his attorneys, Todd Blanche and Christopher Kise, filed a motion to dismiss his case on the basis of the PRA.
In the motion, they argue the PRA “conferred unreviewable discretion on President Trump to designate the records at issue as personal,” and therefore, “President Trump’s possession of those records was not ‘unauthorized.’”
Secondly, Mr. Blanche and Mr. Kise argue that the “PRA’s exclusive remedy for records collection efforts by NARA is civil in nature and forecloses criminal investigations,” referring to the National Archives and Records Administration.
His attorneys concluded that the counts charging President Trump “in the Superseding Indictment fail to state a claim under Rule 12(b)(3)(v) of the Federal Rules of Criminal Procedure.”
“Accordingly, pursuant to the PRA, the Superseding Indictment must be dismissed,” they added.
In opposition, DOJ prosecutors Jay Bratt and David Harbach assert that “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.”
Specifically, prosecutors say the PRA “prohibits the unauthorized possession and willful retention of national defense information.”
“Even if the raft of highly classified documents that Trump took from the White House to Mar-a-Lago were somehow categorized as ‘personal’ under the PRA, that would not render his retention of those documents ‘authorized,’” they added.
Prosecutors say the “authorization for a former President to possess classified information comes from the applicable executive order—not from the PRA—and Trump was not authorized to possess classified records at all,” let alone in “unsecured locations at Mar-a-Lago.”
They also assert that the “charged documents are indisputably presidential, not personal, and Trump offers no basis to conclude otherwise.”
Lastly, prosecutors argue President Trump is wrong when he suggests that the PRA’s “civil remedy for recovering presidential records preempts the Justice Department’s authority to investigate and enforce criminal law.”
Instead, the DOJ claims the “civil remedy” of the PRA solidifies “Congress’s determination that the United States owns presidential records” and not the sitting president or former president.
President Trump and his attorneys filed a reply brief on March 13 in support of the motion to dismiss his indictment based on the PRA, responding to the DOJ’s opposition.
His attorneys claim the documents in question were designated as “personal records” pursuant to the PRA, and therefore, the DOJ is “foreclosed as a matter of law” from establishing that the former president’s retention of those records was “unauthorized.”
They also say that “DOJ, NARA, and even the Biden Administration’s White House Counsel” have adopted similar positions by arguing that “PRA designations by former presidents and vice presidents are not reviewable in criminal proceedings.”
Therefore, his attorneys believe the DOJ’s contrary position is “meritless.”
The defense also claims NARA’s actions were “politically motivated” and “driven by the Biden Administration as a political weapon” against President Trump. Therefore, he states NARA’s February 2022 referral to investigate the withheld documents is a “sham,” and its May 2022 “rejection of President Trump’s executive privilege claim violated the Administrative Procedure Act.”
Lastly, he and his attorneys claim there were not “reasonable grounds to believe there had been a violation of Federal criminal law” because of the “unbroken chain of custom and history of NARA inaction with respect to PRA records designations.”
They argued that former President Bill Clinton permitted Taylor Branch to write about tapes containing classified information and that the DOJ and NARA “hardly lifted a finger in response.”
If the DOJ’s current position didn’t apply to President Clinton, President Trump believes it shouldn’t apply to him either.
“The Special Counsel’s Office should not be permitted to predicate an unlawful prosecution on a contrary interpretation of the PRA,” his attorneys wrote.
‘Unconstitutional Vagueness’
The former president’s lawyers also argued that the section of the U.S. Code used for the charges was void due to vagueness under the vagueness doctrine.
According to Cornell Law School’s Legal Information Institute, the vagueness doctrine is “a constitutional rule that requires criminal laws to state explicitly and definitely what conduct is punishable. Criminal laws that violate this requirement are said to be void for vagueness. Vagueness doctrine rests on the due process clauses of the Fifth and Fourteenth Amendments of the U.S. Constitution.”
The intention is to require “fair notice of what is punishable” in order to “prevent arbitrary enforcement of the laws.”
The statute in question, 18 U.S. Code § 793(e), states, in part, “Whoever having unauthorized possession of … any document … relating to the national defense, or information relating to the national defense which information the possessor has reason to believe could be used to the injury of the United States or to the advantage of any foreign nation … willfully retains the same and fails to deliver it to the officer or employee of the United States entitled to receive it … Shall be fined under this title or imprisoned not more than ten years, or both.”
The defense argued that the wording is too vague, specifically around the alleged undefined clauses “unauthorized possession,” “relating to the national defense,” and “entitled to receive it.” They argued that President Trump was operating within the framework of the PRA, acted as “the ultimate Original Classification Authority,” has executive privilege, and “is entitled to immunity for his official acts.”
They also specifically asked that “Count 19” be dismissed because they said President Trump maintained the necessary security clearance during the time alleged in the indictment.
However, the prosecution asked that the motion be rejected, arguing that President Trump had full knowledge of the fact he was no longer authorized to possess the documents, nor did he charge any of them while he was president, and he willfully retained them.
They also argue that the documents were clearly related to national defense, as they allegedly included classified information on the defense and weapons capabilities of the United States, its nuclear programs, and the vulnerabilities of the nation and its allies.
They also argued that the PRA does not authorize a former president to possess classified information.
“These assertions stem from Trump’s pervasive claim that his former service as president somehow exempts him from the laws and principles of accountability that govern every other citizen,” the prosecution said in its written response.
President Trump’s attorneys filed a reply brief on March 13 to the prosecution’s opposition, doubling down on their previous position. They argued the special counsel’s office ignores legislative history and its claim that the “statutes prohibitions are clear” is “baseless and untenable.”
“The Court will be writing on what is essentially a blank slate in the Eleventh Circuit, against the backdrop of the Supreme Court’s recent retrenchment on using ‘judicial gloss’ to save statutes that Congress should have written more clearly,” the defense said. “Judicial gloss” essentially refers to the judges’ previous interpretation of a vague statute rather than hard-defined legislation.
They reaffirmed that “President Trump’s retention of the documents was not ‘unauthorized’ under § 793(e) because he designated them as personal records pursuant to the PRA during his first term in Office.” And they said the statute offers no clarity regarding who is “entitled to receive” the personal records of a former president at that point.
They also argued that “the alleged sensitivity of documents when they allegedly passed through the Oval Office says nothing with respect to whether President Trump was authorized to retain them, the scope of the NDI Clause, and who was entitled to receive the personal records of a former President for the first time in history.”
As with “Count 19,” the defense once again stood its ground but also asked that the court conduct a hearing regarding President Trump’s alleged “Q” clearance and resolve any factual disputes.
6 Charges Dropped in Georgia Case
President Trump had six of his 41 charges dropped in his Georgia racketeering case on March 13 after he and his co-defendants filed several demurrers, or formal challenges to pleadings by the prosecution.
Three of the charges dropped by Fulton County Superior Court Judge Scott McAfee relate to a phone call the former president made to Georgia Secretary of State Brad Raffensperger on Jan. 2, 2021.
Judge McAfee made his ruling days ahead of an expected decision on a motion to disqualify Fulton County District Attorney Fani Willis from prosecuting the case after she was accused of an alleged improper relationship with a special prosecutor and an alleged misuse of public funds in the case.
Despite the charges, and with no other challengers left in the race, President Trump stands to officially become the Republican Party’s nominee for president in the 2024 election. Recent exit polls continue to show that Republican voters still deem him eligible to be president despite any hypothetical conviction.
—T.J. Muscaro, Jacob Burg
From The Epoch Times
