Has the former president's defense gotten some traction with Judge Aileen Cannon?

Today was a big day in Biden Justice Department special counsel Jack Smith's document-retention prosecution of Donald Trump in Florida. A couple of weeks ago, Judge Aileen Cannon, a Trump appointee, issued an interesting order directing the parties to address questions that focus squarely on the Presidential Records Act (PRA), relied on by the former president as his main defense against Smith's 32 felony charges of unlawfully retaining national-defense intelligence.

Those submissions are due today.

Trump contends that his removal of hundreds of classified documents from government safekeeping, and their storage at his Mar-a-Lago resort club, were permitted under the PRA. Smith counters that Trump is wrong because the documents at issue are not primarily presidential records and, to the extent they may be presidential records, they were government property required by law to be archived – they were not Trump's personal records.

As I've explained (see here and here), I believe Smith is right. The PRA defines presidential records as those generated by the president and his staff, reflecting the activities and decision-making of the presidency. By contrast, the documents in the indictment are, in the main, agency records – in this instance, national-security reporting by congressionally created, taxpayer-funded intelligence agencies.

Importantly, the point of the PRA is to clarify that even presidential records are the property of the United States, not of the president. (They were assumed to be the latter prior to President Richard M. Nixon's Watergate scandal.) What's more, the PRA's presumption is that such records must be archived. The narrow exception to the archiving requirement is private records, which a president may keep for himself – including retaining them once he is out of office – if they are in the nature of a diary or unrelated to the presidency.

Are there situations in which an agency record could become a presidential record? Sure. For example, a president might have physically annotated a classified agency report he'd been given. The document would still be an agency record, but now it would also be a presidential record – a document on which were recorded the president's notes about a matter clearly related to the presidency. But statutorily, and by common sense, this would simply mean that there were two legal bases, rather than just one, for the report to be maintained in government archives. There would be no credible contention that such an agency record (property of the United States) that was also a presidential record (property of the United States) had somehow transmogrified into the president's personal property.

The former president's claim that he had the authority to deem these records his private property is, to my mind, untenable. In arguing the contrary position, the Trump team has posited two points.

First, Trump correctly notes that the PRA does not give the archivist authority, during the president's term in office, to second-guess a president's determination that materials are his private property. From that premise, however, Trump leaps to the flawed conclusion that nobody in government has such authority, no matter what a president pilfers and no matter how patent it is that the item taken is not his personal property – e.g., agency documents, White House art and furniture, physical evidence of a crime, etc. In fact, according to Trump, the president need not even make a determination that an item is his personal property; all he needs to do is swipe it. Trump maintains that from this act an irrebuttable presumption must be drawn, not only by the archivist but by all law-enforcement agencies and the courts, that the president must tacitly have determined the item to be personal.

Here, we must note how selectively Trump reads the PRA. It explicitly requires that presidential decisions, even minor ones, be documented in writing. That is, it would be not only irrational to infer that a president must have decided that something obviously not his personal property somehow was his personal property; it would also be in contravention of the statutory mandate that the president document his determination that an item is personal. Of course, Trump does not claim to have made any such written decision – no president would be crazy enough to write a finding that a classified intelligence report was his personal property because doing so would foment a scandal. But the point is that Trump wants the advantage of the statutory provisions that favor him (e.g., that the archivist has no law-enforcement power) while pretending that the provisions cutting against him don't exist. Normally, the law expects people who seek to enforce statutes to have complied with their obligations under those statutes.

Second, Trump relies on the Clinton Socks Case (Judicial Watch v. National Archives and Records Administration), a lower-court ruling that involved neither agency records nor prosecutorial authority. As I've previously related (see here and here), President Clinton collaborated with a historian to make an oral history of his administration (later published as a book). They made tapes that Clinton never designated as classified (though parts of them surely should have been), at least some of which he is said to have kept in a sock drawer. Clinton took the tapes with him (in addition to various items of furniture, china, etc.) when his term was over. Years later, the group Judicial Watch sought to force the archivist to retrieve the tapes.

An Obama-appointed district judge, Amy Berman Jackson, sided with NARA in arguing that the PRA did not give the archivist authority to compel Clinton to surrender the tapes (a decade after he'd left office). That's true as far as it goes, but it hardly means that the Justice Department – which has law-enforcement authority wholly independent of the PRA – would not have had authority to investigate the matter as a potential crime and compel the former president to surrender the tapes through court process (either by subpoena or warrant) if he had declined to surrender them voluntarily.

(It should go without saying that the Obama administration, whose Justice Department was run by former Clinton deputy attorney general Eric Holder, and whose secretary of state was Clinton's wife, had no interest in investigating Clinton's retention of the tapes. Under the doctrine of prosecutorial discretion, no court could have compelled the Justice Department to investigate the matter.)

In any event, Clinton's tapes, which he generated, were very different from classified agency intelligence records, which Trump did not generate and were in no rational conception Trump's personal property.

Obviously, I am not persuaded by Trump's PRA arguments. It is possible, though, that they have gotten some traction with Judge Cannon. In the briefs to be filed today, she has homed in on the question of whether the former president was in unlawful possession of the documents and has instructed the parties to assume that either of two scenarios is a correct statement of the law. The scenarios are (this is not a quote from the judge's order, which I linked to above; I am simplifying):

(1) The jury is permitted to examine a record retained by a former president and decide, using the PRA's definitions, whether the government has proved beyond a reasonable doubt that that the record is personal or presidential. Or,

(2) Under the PRA, while a presidential term is ongoing, only the president has authority to categorize records as personal or presidential, and neither a court nor a jury may review that decision. Moreover, because the PRA defines no formal means by which a president must make that categorization, it must be inferred from a former president's retention of a record that he had categorized it as personal while president.

One must assume that prosecutor Smith and his staff were dumbfounded upon reading this order. The second scenario is Trump's defense. If Cannon ultimately decides that it is an accurate statement of the law, the 32 document-retention counts can't survive.

Keep in mind: Cannon has directed the parties to submit proposed jury instructions assuming each scenario is a correct statement of the law – even if a party disagrees. It will be interesting to see what Smith proposes. Even though it would be understood that he is reserving counterarguments to appeal an unfavorable ruling by Cannon, I don't see how he can concede, even for the purposes of argument, that this is a correct statement of the law.

Even the first scenario must concern prosecutors. Obviously, it would allow a jury to convict Trump: The jury could make its own determination that the records were presidential, not personal, and therefore that the law required them to be archived and that Trump could not lawfully retain them. But Cannon's premise in this scenario seems to be that the PRA controls. Smith, of course, wants to argue that since these are agency records, there should be no need to evaluate them under the PRA because they can't conceivably be the personal records of the president.

We will watch the submissions carefully.

Andrew C. McCarthy is a senior fellow at National Review Institute, an NR contributing editor, and author of Ball of Collusion: The Plot to Rig an Election and Destroy a Presidency.