According to legal analyst Mike Davis, former President Donald Trump had the right to hold onto records from his time as president despite federal prosecutors arguing the move constituted willful retention of national defense information.
Davis—who served as a legal counsel to Sen. Chuck Grassley (R-Iowa), as clerk for a federal judge, and who now heads the Article III Project—said the 37-count federal indictment against Trump is legally flawed when held against past court precedents surrounding presidential records.
“Former presidents are allowed to have their presidential records when they leave office, whether they are classified or not, and that is in the Presidential Records Act. And that’s why Congress gives former presidents secure office space, federally funded staff, and Secret Service protection in the heavily guarded office of the former president,” Davis said in a Wednesday interview with NTD’s “Capitol Report.”
Davis said President Joe Biden’s Justice Department, Attorney General Merrick Garland, and special counsel Jack Smith have ignored the wording and case law surrounding what should have been an issue involving the Presidential Records Act (PRA) in order to instead charge him with violating the Espionage Act.
The 37-count indictment (pdf) against Trump includes 31 counts of willful retention of classified information, in violation of the Espionage Act.
“They can’t charge espionage for something a former president is allowed to have under the Presidential Records Act,” Davis asserted.
Davis said there was no indication in the indictment that Trump sought to harm U.S. national security with the documents federal prosecutors found.
“There’s no evidence whatsoever he tried to harm America with [the records] and he’s allowed to have them under the Presidential Records Act, so how can you charge a president for retaining his presidential records under the Espionage Act and try to throw him in jail for the rest of his life?” Davis said.
The Sock Drawer Standard
The PRA sets up a system whereby a president has to categorize records from his time in office as either presidential or personal.
Since the indictment, Trump and some of his supporters have asserted that past court cases had demonstrated that a president has “unconstrained authority to make decisions regarding the disposal of documents” and “neither the [NARA Archivist] nor Congress has the authority to overrule a president’s judgment.”
Trump has also cited a 2012 court case in which Judicial Watch sought to compel NARA to collect and then divulge recordings former President Bill Clinton had retained from his time in office. Clinton had reportedly kept dozens of these tapes in his sock drawer. Judge Amy Berman Jackson, an appointee of President Barack Obama, ruled in favor of allowing Clinton to withhold the recordings in a 2012 ruling (pdf).
“This Obama judge held that President Clinton could have eight years of highly classified audio recordings of his presidency, including discussions with foreign leaders—obviously highly classified—in his sock drawer,” Davis said. “There was no raid. There was no indictment.”
Political Motives Behind Charges
Davis, like Trump and several other Republican politicians, described the decision within the Biden administration to indict Trump over his retention of documents as politically motivated.
“This is a bogus political hit by Biden to go after Trump because they fear he’s going to win the next election,” Davis said.
In a separate interview with “Capitol Report,” Rep. Andy Biggs (R-Ariz.) said, “I think everybody’s in agreement that this is disparate and politically motivated.”
Biggs noted other political officials who have not been federally charged despite retaining classified documents, including former Secretary of State Hillary Clinton, and Biden himself.
Biden has denied having any involvement in the decision to indict Trump, who was his opponent in the 2020 election and leads the 2024 Republican primary field.
Garland also defended Smith’s decision to charge Trump on Wednesday, saying the prosecutor “has assembled a group of experienced and talented prosecutors and agents who share his commitment to integrity and the rule of law.”
The Peril of Process Crimes
Former Assistant U.S. Attorney John O’Connor, like Davis, has expressed skepticism of the legal viability of the charges against Trump under the Espionage Act.
“Even with the Presidential Records Act, the president has some unspecified time within which to hand over the documents,” O’Connor said. “So mere possession of classified documents by an ex-president is not illegal, should not be looked at as illegal. And so, yes, it’s a very flimsy basis to say that there’s anything wrong with him possessing classified documents. I don’t buy it.”
O’Connor has, however, expressed concern that Trump’s alleged conduct when faced with a subpoena for his documents could bring real legal peril to the former president. In addition to the 31 counts of willful retention of national defense information in violation of the Espionage Age, Trump is also charged with a count of withholding a document or record, “corruptly” concealing a document or record, concealing a document in a federal investigation, conspiring to obstruct justice, scheming to conceal materials, and making false statements.
The federal indictment alleges that in May of last year, federal officials issued a subpoena asking for Trump to turn over documents in his possession that bore classified markings. Trump allegedly discussed with his attorneys how he did not want anyone to go through his records. Trump allegedly asked his attorneys whether it would be better if they simply denied having the requested documents and referenced how representatives of Hillary Clinton had deleted thousands of emails from a private server she operated after the contents of that server were subpoenaed.
The indictment further states that on May 23, 2022, an attorney told Trump he would come by to review the documents in Trump’s possession on June 2, 2022. Between May 23 and June 2, Trump allegedly directed co-defendant Waltine Nauta to remove 64 boxes from a storage room at Trump’s Mar-a-Lago resort. Trump allegedly spoke with Nauta by phone again on June 2 and Nauta subsequently moved 30 boxes of documents back to the storage room, which Trump’s attorney later reviewed. One of Trump’s lawyers disclosed the storage room as the location of Trump’s documents, even though Trump had other boxes of documents elsewhere on his property.
O’Connor said Trump could have legally challenged the subpoena for his documents, “but you can’t just simply lie to the government, you can’t submit or cause to be submitted a perjurious statement. So I gotta say, even though these are process crimes, they’re important process crimes.”
Trump’s Chances With a Jury
Davis argued that prosecutors will have a hard time convincing jurors to convict Trump in the documents case, largely because they cannot demonstrate that he sought to harm national security.
Biggs offered a different view, saying Trump’s chances of a fair trial have been complicated by years of allegations against Trump that have served as the basis for past investigations, a separate criminal prosecution, and two impeachment proceedings.
“I think that the left has really done its job in tainting potential jury pools and that’s part of the reason that this is just, in my opinion, really grossly unfair,” Biggs said.
Biggs also said the fact that Trump faces 37 different counts gives multiple opportunities to catch Trump on at least one charge.
O’Connor also said Trump is likely to be convicted on at least some of the charges but said that the judge assigned to his case, Judge Aileen Cannon, may favor leniency for the former president.
“I don’t see how any jury will not convict Trump, on some of those counts,” O’Connor said. “You know, whether it’s six or eight counts, those counts are very, very tough for him to defend. Now, luckily, he has a judge who probably is not biased against him. And he may get probation, he may get a few months in a country club prison, but he’s going to get convicted in my humble opinion.”