US Department of Justice
On Thursday, Donald Trump and special counsel Jack Smith will have the chance to debate in court Trump’s most-cited legal argument in the classified documents case against him: whether as president, he was allowed to keep any documents he wanted.
Trump’s legal team have argued in several court filings that charges against the former president should be dismissed because, they claim, Trump had unfettered authority as president to decide what documents from his time in the White House he could keep as his personal records.
Judge Aileen Cannon, who is overseeing the case, has set apart an entire day to hear arguments on whether the prosecution should be thrown out on the basis of Trump’s claims about his presidential classification powers.
The hearing comes at a major inflection in the case. In the coming days and weeks, Cannon could rule on several big issues, including setting a new trial date – and whether it comes before the November election – as well as if Trump will get an evidentiary hearing over additional discovery he wants in the case from President Joe Biden’s White House, the FBI and beyond.
Trump is facing dozens of charges related to his alleged mishandling of classified documents, and for obstructing the Justice Department’s investigation. He has pleaded not guilty.
The question of presidential authority on classified documents is one of several that Trump’s team has raised in their motions to dismiss the case against him.
As president, defense attorneys argue, Trump was the chief classification officer and could mark any documents as “personal” and legally take those documents with him when he left office.
Their arguments cite the Presidential Records Act, the federal law that governs how documents from an outgoing presidential administration are handled. The PRA says the moment a president leaves office, the National Archives and Records Administration gets custody and control of all presidential records from their administration.
Personal records are described in the PRA as things like personal notes, materials relating to private political associations or materials relating exclusively to the president’s own election to the White House.
On the campaign trail, Trump frequently makes the argument that he was allowed to take documents with him after leaving the Oval Office – claiming repeatedly that he did not break the law because he could handle his records from his presidency however he deemed fit.
Trump has claimed that he was “covered and protected by the Presidential Records Act,” and that he was “supposed to negotiate, I’m supposed to deal” with the National Archives over which documents needed to be returned.
Several legal experts, however, say that Trump was misconstruing the law.
The special counsel’s office has argued the PRA does not provide a president the ability to change classification designations merely by moving the documents.
“His claim that obviously presidential records — highly sensitive government documents bearing classification markings that were presented to Trump during his term in office — can be transformed into ‘personal’ records by the alchemy of removing them from the White House is false,” the special counsel’s office wrote in a court filing.
As reported by CNN