Former President Donald Trump told his lawyers that the documents seized from Mar-a-Lago were his property and not the government’s. His defenders have adopted an expansive view of the Presidential Records Act to include even classified materials in the former president’s possession.
Trump’s justification for keeping the documents relies heavily on the opinion of Judicial Watch President Tom Fitton, a non-attorney who claims that a case involving recordings belonging to former President Bill Clinton could exonerate him. In that case, Clinton kept recordings from his time as president in his sock drawer. Judicial Watch sued for the recordings as a matter of public interest, but lost the case because the judge found that the National Archives lacked the authority to decide what was a presidential record and what was a personal record.
“Whatever documents a president decides to take with him, he has the absolute right to take them,” Trump claimed last week, addressing the Faith and Freedom Coalition conference. “He has the absolute right to keep them, or he can give them back [to the government], if he wants. … That’s the law, and it couldn’t be more clear.”
The former president claimed in conversations with his lawyers that it was “illegal” for him to not be able to have the highly classified documents that he reportedly took from Mar-a-Lago. Since leaving office he has insisted that the highly classified documents were “mine.”
Donald Trump Resists Plea Deal
Trump resisted an effort by his attorney Christopher Kise to work out a plea deal with the Justice Department that could have kept him from being indicted. Under that scenario, Trump could have skated by, paying a fine and pleading guilty to misdemeanors.
He believes he will get the documents back come 2025 because he will be president again.
The National Archives demanded that Trump return the documents beginning in February 2021 and repeatedly asked for their return until it warned the former president that it would refer the matter to the Justice Department if he did not comply.
Former Trump attorney Evan Corcoran told the grand jury that Trump allegedly obstructed justice by preventing him from finding all of the classified documents at Mar-a-Lago.
Special counsel Jack Smith indicted Trump earlier this month on 37 counts of violation of the Espionage Act by illegally retaining classified documents without authorization, obstruction of justice, and other violations.
Lawyers, including those aligned with the former president, have said they believe that he had to return the documents under the Presidential Records Act, specifically 44 USC 2205(3), which asserts that “Presidential records of a former President shall be available to such former President or the former President’s designated representative,” according to Rolling Stone.
Trump Legal Reasoning Disputed
Legal experts disagree with Trump’s reasoning.
“Whatever one might say about his Presidential Records Act argument, there’s no argument that it immunizes him from criminal prosecution under the Espionage Act,” Brian Greer, an attorney who served in the CIA’s office of general counsel from 2010 to 2018, told Rolling Stone.
Greer stated that the law does not afford Donald Trump the luxury to dodge a lawful subpoena as a private citizen.
Judicial Watch attorney Michael Bekesha responded to the indictment with a column in The Wall Street Journal reaffirming the sock drawer defense.
“The indictment, however, doesn’t allege that Mr. Trump swooped down into agencies, took records that didn’t belong to him and hid them in boxes. It claims that he kept records received by him as president. Thirty years of legal precedent suggest that the records Mr. Trump retained aren’t ‘agency records’ and that his decision to maintain the records can’t be second-guessed,” Bekesha wrote.
John Rossomando is a senior analyst for Defense Policy and served as Senior Analyst for Counterterrorism at The Investigative Project on Terrorism for eight years. His work has been featured in numerous publications such as The American Thinker, The National Interest, National Review Online, Daily Wire, Red Alert Politics, CNSNews.com, The Daily Caller, Human Events, Newsmax, The American Spectator, TownHall.com, and Crisis Magazine. He also served as senior managing editor of The Bulletin, a 100,000-circulation daily newspaper in Philadelphia, and received the Pennsylvania Associated Press Managing Editors first-place award for his reporting.
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