From left to right, we see Special counsel Jack Smith arriving to speak about an indictment of former President Donald Trump in August 2023. Then, U.S. District Judge Aileen Cannon is seen during a remote Senate Judiciary Committee nomination hearing. Finally, we have a photo of former President Donald Trump himself speaking at Trump National Golf Club in Bedminster, New Jersey in June 2023.
The upcoming hearing in the Mar-a-Lago case is set to delve into key issues such as “unconstitutional vagueness,” the “Q clearance,” the National Archives’ criminal referral, and the Presidential Records Act. During this hearing, Donald Trump’s legal team will present arguments in favor of dismissing the Espionage Act indictment, while the Special Counsel’s Office will argue against it.
What you can anticipate and when
U.S. District Judge Aileen Cannon, who had previously given the defense additional time to respond to special counsel Jack Smith’s pretrial motions regarding discovery and the “scope of the prosecution team,” has informed both parties to be ready for a “full day of argument” starting at 10 a.m. on Thursday.
The arguments will focus on two key motions: one from Trump, seeking to dismiss the Espionage Act indictment on grounds of “unconstitutional vagueness,” and another from his co-defendant and valet, Walt Nauta, aiming to dismiss the case based on the Presidential Records Act.
The Espionage Act is a significant legislation that holds great importance in the United States. It is a law that was enacted to address espionage and related activities during times of war. This act was passed by the US Congress in 1917, just after the country’s entry into World War I. It was primarily aimed at preventing the disclosure of sensitive information that could potentially harm the nation’s security and interests. The Espionage Act provided a legal framework to prosecute individuals who were involved in activities that threatened national security, including spying, sabotage, and the dissemination of classified information. It remains in effect to this day, serving as a powerful tool to protect the country’s secrets and deter potential threats.
On Thursday, Smith expressed his opposition to Trump’s challenge of the indictment, citing concerns about its “unconstitutional vagueness.” Smith criticized the challenge both in general and specifically with regard to count 19.
In February, Trump’s lawyers filed a motion to dismiss the charges based on the claim that they were unconstitutionally vague. Specifically, they argued that the nineteenth count, which accused Trump of willfully retaining national defense information, was invalid because it referred to an “Undated document concerning nuclear weaponry of the United States.” The lawyers stated that they had been provided with Department of Energy records that showed President Trump held a relevant “Q” clearance related to the document in question.
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Smith dismisses the argument about the “Q clearance” as baseless, stating that the evidence clearly indicates that the clearance was legally terminated when Joe Biden assumed office as president.
Smith emphasized that there is no legal basis to dismiss the count. He pointed out that even if Trump had a Q clearance at any point after his Presidency (which he did not), it still would not entitle him to possess the document charged in Count 19 at Mar-a-Lago or obstruct a federal probe.
The Trump team’s broader assertion on the Espionage Act charges is certain, and it is highly likely that this issue will come up in court.
The defense argues that the charges of willful retention are too vague when applied to President Trump, a former President who operated within the framework of the Presidential Records Act (PRA). They claim that as the ultimate Original Classification Authority, as stated in Article II of the Constitution and Executive Order 13526, President Trump had the power to classify information. Additionally, they assert that he had recourse to executive privilege and is entitled to immunity for his official acts.
The Presidential Records Act ensures that the records created or received by the President of the United States are properly managed and preserved.
In regards to the Presidential Records Act, Smith addressed the arguments put forth by Trump’s defense, which were supported by Stephen Miller’s legal group, America First Legal Foundation. The special counsel firmly stated that Trump’s use of the PRA to dismiss is incorrect.
The upcoming hearing will definitely address this issue as well.
The defense, in its motion to dismiss, confidently argued that the PRA grants Trump extensive executive authority under Article II, allowing him to designate records as personal. This authority, as stated in the Superseding Indictment, includes the alleged act of transporting materials out of the White House while he was still in office.
According to Smith, Trump did not possess the unilateral authority under the PRA.
According to the special counsel, the PRA does not grant Trump immunity from criminal law, give him the authority to classify presidential records as personal records, or protect him from criminal investigations. Furthermore, it does not permit him to obstruct a federal investigation without facing consequences. The special counsel then addressed the assertions made by America First Legal (AFL) about the National Archives (NARA).
What’s the deal with the National Archives?
AFL successfully intervened in the case as a friend of the court, arguing that NARA had unlawfully abused its executive authority and violated the Administrative Procedure Act by referring the case to the DOJ.
The AFL argued that NARA’s failure to give advance notice of its claimed referral authority or provide clear guidelines on the behavior that would trigger this authority warrants the dismissal of the indictment.
Smith has since replied, stating that the defense and its allies are fundamentally mistaken on this matter.
Finally, Trump contends that NARA made an improper referral to DOJ on February 9, 2022, and that the FBI therefore had no basis to “predicate” an investigation of his unauthorized possession of classified government documents. He claims that, as a result, the obstruction and false-statement allegations in Counts 33-42 must be dismissed. Each aspect of that argument is fundamentally wrong. Nothing in the PRA preempts the application of federal criminal law or divests the Government of criminal investigative authorities, and in any event, an individual’s claim that the Government lacked authority to investigate provides no defense to charges for obstructing its investigation.
As always, court observers will be eagerly searching for any indications or clues that might shed light on Judge Cannon’s stance on the matter. They will be particularly interested in how the arguments put forth by the pro-Trump amici influence the judge’s thought process.
Upon accepting AFL’s brief and a second notable brief, the judge acknowledged that these submissions could greatly assist the Court in addressing the pretrial motions at hand.
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