On the left, we see Former President Donald Trump taking a break during his civil business fraud trial on October 25, 2023. (AP Photo: Seth Wenig) On the right, Special counsel Jack Smith addresses the media regarding an indictment of former President Donald Trump on August 1, 2023. (AP Photo: J. Scott Applewhite.)
Former President Donald Trump filed reply briefs on Wednesday, in which he argued for the dismissal of charges against him in the Mar-a-Lago classified documents case.
Attorneys representing the 45th president have once again filed separate motions requesting U.S. District Judge Aileen Cannon to dismiss the charges.
The focus of the briefs is on the recent arguments against dismissal made by special counsel Jack Smith. These briefs have been presented on the eve of a hearing in southern Florida, where the issues will be discussed in detail.
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The Problem of Unconstitutional Vagueness
Defense lawyers argued in their motion to dismiss in February that the Espionage Act statute, 18 USC § 793(e), which forms the basis of the first 32 counts in the superseding indictment, has long been considered legally problematic. They pointed out that several courts have made efforts to “save” the statute due to its vagueness.
Smith vehemently denied the validity of those claims in the government’s opposition motion last week.
According to a recent filing by Trump on Wednesday, the government is admitting that they need to interpret the Espionage Act in order to make their claims against the former president work. The defense argues that this is an indication that previous courts have had to go beyond the literal wording of the law to salvage statutes that should have been written more clearly by Congress.
According to the defense filing on Wednesday, the Special Counsel’s Office begins with a claim that is both unfounded and unsustainable. The filing asserts that the statute’s prohibitions are clear, but the defense argues that this claim is baseless. The defense suggests that what the Office truly meant is that courts have attempted to clarify the statute through explanations and numerous judicial decisions, which have expanded the scope of the law beyond the original intent of Congress.
Trump argues that three phrases in question lack clarity. The first phrase, “unauthorized possession,” fails to provide a clear definition of what constitutes unauthorized possession. The second phrase, “relating to the national defense,” does not specify the scope or parameters of what falls under the umbrella of national defense. Lastly, the phrase “entitled to receive it” lacks clarity in determining who is entitled to receive the information.
The defense argues that in each instance, Smith’s office has distorted case law, deliberately fabricated information, and/or relied on non-circuit precedents that are the outcome of judges acting inappropriately.
According to Trump, the government completely misunderstood the nature of the case, which was actually about traditional espionage rather than document retention. This makes the case irrelevant to Smith’s argument that there was clarity regarding the definition of “unauthorized possession” in the current context.
The government previously stated that “unauthorized” refers to actions that are carried out without official approval or permission, as established by dictionary definitions.
Trump challenges this definition by pointing out that one of the cases mentioned by the government involved obtaining private documents “without permission.” He disputes the government’s claim by asserting that Smith’s office deliberately inserted the term “official” into their fabricated definition.
The initial filing argues that the Special Counsel’s Office’s attempt to connect President Trump to the charges is flawed. It acknowledges that President Trump held the position of the country’s chief classification authority and asserts that this role applies to all the documents mentioned in Counts 1-32, as the Court has previously recognized.
Trump has requested Cannon to disregard the expanded interpretation of the term “national defense” by numerous other courts.
According to Trump’s attorneys, the interpretations made by the Special Counsel’s Office do not actually narrow down and clarify the text of the NDI Clause. Instead, they argue that these decisions have expanded the scope of the statute in a way that is unacceptable.
The defense attorneys of the former president argue that the language in Section 793 (e), which states “entitled to receive,” is unclear in this particular case. They highlight that Trump classified all the documents in question as his “personal records” under the Presidential Records Act (PRA).
The first Wednesday filing argues that there is a lack of clarity concerning who is entitled to receive a former President’s personal records under the PRA, as per designations covered by presidential immunity and invocation of executive privilege. The issue stems from § 793(e), which fails to provide clear guidance on this matter.
The second defense filing that was submitted to the court on Wednesday afternoon builds upon this line of argument.
The Prudential Regulation Authority (PRA) is an important regulatory body that plays a crucial role in the financial sector.
In the second defense filing, it is argued that Trump, as the president, relocated the documents from the White House to Mar-a-Lago, asserting that they were his “personal records” under the authority of the PRA.
Smith strongly disagreed with Trump’s decision to use the PRA as a means to completely dismiss the indictment, stating that it was fundamentally incorrect.
The defense was accused by the special counsel’s office of engaging in “alchemy” and contended that executive order 13526, which remained in effect during Trump’s Presidency and throughout the allegations in the Superseding Indictment, specifies that classified materials can only be accessed by individuals deemed eligible by a United States official, who have signed an approved non-disclosure agreement, and who have a genuine “need to know” the classified information.
According to Trump, the alchemic argument is the only interpretation that truly makes sense.
In the defense’s filing on Wednesday, they argue that President Trump designating records as ‘personal’ under the PRA, and allegedly removing them from the White House while he was in office, is not a result of some mysterious process. Instead, they claim that it is a reasonable conclusion drawn from the Office’s allegation in the Superseding Indictment. According to the filing, President Trump is accused of causing boxes to be transported to Mar-a-Lago while he was still serving as President.
Trump’s lawyers also respond to Smith’s reliance on the executive order, arguing that there is no justification for the court to categorize the documents discovered at Mar-a-Lago using its classification system.
In the defense’s filing on the second Wednesday, they assert that Executive Order 13526 does not have the power to override the PRA.
According to Trump, an executive order is not as powerful as a statute. Additionally, the defense argues that the executive order in question only refers to “presidential records” and does not include “personal records” as outlined in the PRA.
According to the defense filing, Executive Order No. 13526 does not address or refute President Trump’s argument regarding his PRA designations. The suggestion made by the Special Counsel’s Office that President Trump’s designations of the records are implausible is not reasonable.
The defense argues that the entire indictment, including the Espionage Act charges, should be dismissed. They claim that the criminal referral made by the National Archives, which led to the indictment, was based on actions that were not considered crimes. Therefore, the defense asserts that the criminal referral was an improper agency action.
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