The Mar-a-Lago Documents Case Is Still Trump’s Gravest Risk of Criminal Jeopardy

With good reason, special counsel Jack Smith believes he has an extremely strong case against the former president.

Author’s Note: This is the first of a two-column series on this week’s controversy over the Florida federal prosecution of former president Donald Trump, which featured a sharp exchange between special counsel Jack Smith and Judge Aileen Cannon.

I n a post on Tuesday regarding the Florida federal prosecution of former president Trump, I suggested that Biden Justice Department special counsel Jack Smith and his staff must have been “dumbfounded” when they read Judge Aileen Cannon’s order directing them to submit proposed jury instructions that assume the viability of Trump’s Presidential Records Act (PRA) defense. Turns out I should have used a stronger word — maybe apoplectic.

As directed by Judge Cannon, prosecutors filed their response on Tuesday. It was blistering.

As expected, the government contends that the PRA is irrelevant to the question of whether the former president unlawfully retained classified national-defense documents generated by U.S. intelligence agencies. That question, they insist, is controlled by the Espionage Act (§793 of the federal penal code) and the rules for handling and safekeeping classified information set forth in Executive Order (EO) 13256 (including its implementing regulations). The PRA is not inconsistent with these provisions because classified intelligence-agency documents provided to a president are in no conceivable way a former president’s personal records, as the PRA defines that term. Ergo, Smith argues, to instruct the jury that it had to consider the PRA in deciding whether prosecutors had proved Trump was in unauthorized possession of such documents “would distort the trial.”

As this column was being finalized late Thursday, Judge Cannon issued a curt order, denying that she had made up her mind and taking umbrage at the special counsel’s monitory tone.

The Prospects of Appeal and Delay

The prosecutors reluctantly complied with Cannon’s directive that they propose jury instructions for the two scenarios posited in her order. As I explained in Tuesday’s post, and as Smith acknowledges, the 32 document-retention charges could not be prosecuted under Cannon’s second scenario, which basically states Trump’s defense. (While the first scenario is better for Smith because it would allow the jury to do its own PRA analysis and second-guess Trump’s personal records claim, Smith still objects to the implication that the PRA has any bearing on the case.)

Nevertheless, in a bold move, the special counsel admonished that Cannon must make a prompt decision on the legal premise that the PRA is relevant — a premise her order had not expressly adopted, though it certainly suggested she was leaning that way. Smith believes he could appeal “the adoption of a clearly erroneous jury instruction that entails a high probability of failure of a prosecution.” That’s debatable, but it illustrates his greatest fear: Cannon could wait to decide the issue until after the trial starts, and then rule against the government — resulting in Trump’s acquittal based on a legal error the government would be unable to appeal under double-jeopardy principles.

Cannon is not going to accommodate Smith. As I related after her Thursday order in response to Smith’s broadside, the judge rejected the special counsel’s “demand” that she rule prior to “the presentation of trial defenses and evidence” as “unprecedented and unjust.” She chastised Smith for misconstruing her intentions, insisting that she was simply trying “to better understand the parties’ competing positions” in “this complex case of first impression.” To underscore that point, she used the occasion to deny Trump’s PRA-based motion to dismiss the indictment; at least as a preliminary matter, she has ruled that a documents-retention offense can be pled and proved without regard to the PRA.

That doesn’t tell us how she will rule on it as a defense. Smith will have to await the trial to find out. On that score, though, I believe his aggressive submission, while riling the judge (which is not the best approach), also has her implicitly acknowledging that Trump’s PRA defense may be much ado about nothing, and that he will have to prove it with evidence. As we’ll see in a moment, he’s unlikely to be able to do so.

What is increasingly clear, in any event, is that the Mar-a-Lago documents case will not be tried prior to the presidential election in November. To this point, Smith has included the Florida prosecution in his politicized agenda to influence the 2024 election, in violation of Justice Department rules. But the case is already bogged down in litigation over the admissibility of classified information, for which pretrial appeals are permitted by statute. Smith’s maneuvering in anticipation of a pretrial appeal regarding the PRA indicates that he has come to terms with the reality of delay in Florida. Expect him to devote his immediate energy to getting his other Trump case — the 2020 election-interference prosecution in Washington, D.C. —  scheduled for a pre-election (or even during-election) trial, before the more-accommodating, Obama-appointed judge Tanya Chutkan. With good reason, Smith believes he has a strong documents-retention case against Trump. Judge Cannon has not closed the door on an appeal, if one is “permitted by law,” and Smith will avail himself of such an option if it appears viable and necessary. He’d rather appeal and preserve the case he believes he is entitled to present than rush to trial and risk acquittal due to erroneous legal rulings.

I believe Smith is right in these conceits. I also think, however, that he’d have been better off trimming the Florida case down to the obstruction charges. They are also strong, and have the advantages — over the documents charges — of being straightforward, more readily triable, and not as susceptible to selective-prosecution objections (after President Biden was given a complete pass on comparably serious document-retention charges).

Sorting Out the Records: ‘Presidential,’ ‘Agency,’ and ‘Classified’

In wholly rejecting Trump’s PRA defense, Smith is actually more indulgent of it than I have been.

I have argued that the intelligence documents at issue are not presidential records at all because they are agency records (i.e., compiled by federal agencies, not the president and his staff) and are thus covered not by the PRA but by federal administrative law (i.e., §552 (Title 5, U.S. Code)). Agency records are broadly defined by §552(f). To be sure, a different provision of this statute — §552(b) — caveats that §552 (presumably including its definition of agency records) does not apply to classified information. But that doesn’t render §552 irrelevant; to the contrary, §552(b) adds that classified information in the agencies’ possession is controlled by an executive order — the aforementioned EO 13526. That EO is the functional equivalent of statutory law: It was issued pursuant to a congressional directive in §3161 of federal classified-information law, and later added as an appendix to that statute. In its Part 4, the EO lays out extensive rules for safeguarding classified agency records. I don’t believe the fact that classified agency records are controlled by the EO incorporated by reference in §552(b), rather than by the definition of agency records set forth in §552(f), should change the conclusion that the documents at issue are agency records, not presidential records.

That said, it is not necessary for Smith to fight this battle, and he doesn’t. Even if one concedes that classified agency records become presidential records once they are given to the president or his staff, Smith can still easily establish that they are not personal records, which should be all he needs to do to prevail.

In making this concession, Smith not only heeds the above-described §552(b) exclusion of classified information from the §552(f) definition of agency records. He also gives a wide berth to the definition of presidential records in PRA §2201(2), which includes documentary materials not only created by but also “received by” the president and his staff.

I do not construe this “received by” language to convert agency records into presidential records. After all, the same PRA provision explicitly states that presidential records do not include agency records. (§2201(2)(B).) But, again, Smith is mindful of the above-described exclusion of classified information from the statutory definition of agency records. He thus assumes that classified information received by the president and his staff from an intelligence agency does constitute a presidential record under the PRA — regardless of whether it could also be accurately described as an agency record under administrative law.

I’ve spent time on this fine distinction between agency and presidential records because I’ve previously insisted that the documents at issue are agency records, and that the PRA thus does not apply at all. Smith concedes that they are presidential records, but he similarly concludes that the PRA is beside the point. In the end, then, this distinction makes no practical difference: The dispositive point is that, regardless of whether the documents Trump retained are seen as agency records or presidential records, they are not and could not credibly be deemed personal records of the president.

PRA §2201(3) defines personal records of a president as being

of a purely private and nonpublic character which do not relate to or have any effect upon the carrying out of the constitutional, statutory, or other official or ceremonial duties of the President.

This includes, for example,

diaries, journals, or other personal notes serving as the functional equivalent of a diary or journal which are not prepared or utilized for, or circulated or communicated in the course of, transacting Government business. [§2201(3)(A).]

In light of this definition, there is no way that agency-produced classified-intelligence reports provided to the president so he can make national-defense and foreign-relations decisions could rationally be deemed personal records of the president.

So how could such intelligence reports have been designated as Trump’s personal records? As we’ll see in the second part of this two-column series, prosecutors forcefully argue not only that such a designation would be absurd as a matter of law but that, as a matter of fact, Trump never made one.