Jack Smith calls the claims made by Trump and Stephen Miller that the Presidential Records Act should drop the Mar-a-Lago prosecution “fundamentally wrong.”

Special counsel Jack Smith addressed the media on Tuesday, August 1, 2023, regarding the indictment of former President Donald Trump. During this time, Trump was seen speaking to the press in the hallway of the Manhattan courthouse on October 4, 2023.

Special Counsel Jack Smith launched a series of counterarguments on Thursday, debunking several claims made by Donald Trump’s defense lawyers in their attempt to dismiss his Espionage Act indictment. One of the arguments challenged was related to the Presidential Records Act (PRA).

According to Smith, the PRA, a topic that Stephen Miller, former senior advisor to the Trump White House, recently commented on through his legal group, does not actually achieve the desired outcome as intended by the former president.

According to the filing, Trump’s argument that the Presidential Records Act (PRA) justifies dismissing the indictment is incorrect. The filing asserts that the PRA does not grant Trump immunity from criminal law or give him the authority to unilaterally declare highly classified presidential records as personal records. Furthermore, the filing emphasizes that the PRA does not shield Trump from criminal investigations or provide him with impunity to obstruct federal investigations.

Trump was compared to an alchemist who claimed to transform materials under the PRA into “personal” records suitable for storage in a Mar-a-Lago bathroom and shower, according to Smith. He highlighted that executive order 13526, which was in effect throughout Trump’s presidency and the allegations in the Superseding Indictment, stated that classified materials could only be accessed by individuals who were deemed eligible by a US official, had signed a non-disclosure agreement, and had a legitimate “need to know” the classified information.

The Superseding Indictment claims that under EO 13526, Trump was no longer authorized to possess classified information once he left office. It is alleged that he did not receive a waiver permitting him, as a former President, to possess such information. Furthermore, he stored the documents at an unauthorized location, which is not approved for the storage, possession, review, display, or discussion of classified documents, according to the special counsel.

Mar-a-Lago judge to consider legal arguments from Stephen Miller’s legal group and Federalist Society co-founder

Smith countered Trump’s claim that the Presidential Records Act (PRA) allows a president to unilaterally and perpetually remove records from the White House without any review. Smith cited executive order 13526 as evidence against this argument.

According to Smith, there is no explicit provision in the Presidential Records Act (PRA) or Executive Order 13526 that grants Trump the authority to store classified government records at Mar-a-Lago. Smith further highlights that this position is supported by the Hur Report on President Joe Biden.

The Hur Report reached the same conclusion: “We therefore decline to adopt the argument that compliance with the [PRA] authorizes former presidents and vice presidents to retain national defense information in unsecured and unapproved locations.”

According to Smith, the diaries of former President Ronald Reagan and the memoirs of former President Bill Clinton are not relevant to the current situation. He argues that Trump is being accused of intentionally keeping national defense information that he was not involved in creating, and that these actions do not reflect his personal thoughts.

Trump alludes to DOJ’s inaction over former President Reagan’s diaries, which he retained after leaving office and which contained classified information. ECF No. 327 at 7. But DOJ’s decisions decades ago with respect to a former President’s diaries establish no legal precedent for the interaction of the PRA and Executive Orders governing classified documents. This case involves classified records created by intelligence and military officials for highly sensitive Presidential briefings. Trump did not create them, they do not reflect his personal thoughts, they came into his possession only through his official duties, and (except for one charged document) bear classification markings. They have no resemblance to diaries. See 44 U.S.C. § 2201(3)(A) (defining “personal records” to include “diaries, journals or other 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”). In any event, the Reagan example does not override EO 13526, and that text does not authorize Trump’s possession and storage of classified documents. Nothing in the PRA calls into question the Section 793(e) counts. […] To reach a contrary conclusion, Trump relies on a statement made during oral argument before the district court in Judicial Watch, Inc. v. NARA, 845 F. Supp. 2d 288 (D.D.C. 2012). That case stemmed from a decision made by President Clinton to “enlist[] historian Taylor Branch to assist him in creating ‘an oral history of his eight years in office.’” Id. at 290 (quoting complaint). President Clinton “planned to make first use of [the taped conversations] for his memoirs, then eventually to release the transcripts at his presidential library.” Taylor Branch, The Clinton Tapes: Wrestling History with the President 13 (Simon & Schuster 2009). After Branch published his book, a non-profit organization, Judicial Watch, sent a FOIA request to the Clinton Library for access to the tapes. Judicial Watch, 845 F. Supp. 2d at 292. The Supervisory Archivist for the Clinton Library responded that “the requested tapes ‘are not [P]residential records and therefore are not subject to request under the PRA and FOIA.’” Id. (quoting complaint). When Judicial Watch appealed to NARA, the Deputy Archivist noted that NARA had never had custody over the tapes. Id. at 292-93. The Deputy Archivist added that, to the extent that the appeal asked NARA to “make a further determination that the materials in question ought to be considered ‘presidential records’ within the meaning of the PRA, we decline to do so.” Id. at 293 (quoting the letter). The Deputy Archivist “‘consider[ed] the nature of the audio tapes, if they were created with the intent of their use as government materials, and whether or not they were circulated within the Administration or relied on as policy documents.’” Id. Based on the available facts, the Deputy Archivist did “‘not believe the materials in question fall within the ambit of the PRA,’” and she was instead “‘of the opinion that the audio tapes created by Taylor Branch are personal records of President Clinton as defined by the PRA.’”

Smith dismissed Stephen Miller-backed arguments for jettisoning the prosecution, stating that Trump’s reliance on the PRA to dismiss the case lacked support from the statute and real-world facts.

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According to Smith, the claims made by Trump and Miller that the National Archives’ alleged improper criminal referral to the DOJ should result in the dismissal of the prosecution are “fundamentally incorrect.”

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.

The special counsel emphasized that even if Trump had a valid PRA argument, which he does not, it still would not have justified obstructing a grand jury probe.

According to Smith, Trump cannot use his legal claim that the investigating entities lacked authority as a way to avoid any repercussions for his alleged obstruction offenses.

Special Counsel Responds to Claims of Selective Prosecution and Comparison to Hillary Clinton, Torches Trump with His Own Words

In a scathing response to accusations of selective prosecution and comparisons to Hillary Clinton, the Special Counsel has come forward with a fiery retort. Utilizing President Trump’s own words, the response aims to shed light on the apparent double standards and inconsistencies in the claims made against the investigation.

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The Special Counsel’s response serves as a direct rebuttal to allegations of bias and unfair treatment. By citing Trump’s own statements, the response effectively challenges the notion of selective prosecution and highlights the inconsistencies in comparing the investigation to previous cases involving Clinton.

This bold move by the Special Counsel showcases the power of using Trump’s own words against him. By demonstrating the contradictions and inconsistencies in his statements, it becomes clear that the accusations of selective prosecution lack merit.

The response serves as a powerful reminder that no one is above the law, regardless of their political stature. It emphasizes the need for a fair and impartial investigation, free from any external influences or biases.

In conclusion, the Special Counsel’s response effectively counters the claims of selective prosecution and comparisons to Hillary Clinton. By utilizing Trump’s own words, the response serves as a powerful rebuttal, highlighting the inconsistencies and double standards in the accusations made against the investigation.

Smith has addressed the Trump team’s comparison of Hillary Clinton in separate filings. He has also restated his concerns for the privacy interests of third parties mentioned in various materials and the safety of witnesses if their identities are made public, as requested by the defense.

According to Smith, the government has shown that the minimal redactions made to its three Oppositions are justified. These redactions only apply to 13 pages out of a total of 268 pages of briefing. Smith argues that the government has met the good cause standard and even surpassed it by demonstrating that the limited sealing or redaction is necessary to protect witnesses who have already faced threats in this case, as well as to prevent potential threats if names and identifying information are disclosed. Therefore, Smith believes that the sealing or redaction proposed by the government is not only justified, but also necessary and tailored to serve a compelling governmental interest.

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