Trump keeps citing the Presidential Records Act in his Mar-a-Lago defense: What does it say?

Ex-president has ‘never been able to explain how the PRA trumps laws about handling classified and national defence [information]. It doesn’t,’ former US attorney says

Gustaf Kilander
Washington DC
Friday 21 June 2024 15:38 BST
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Louise Thomas

Louise Thomas

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Donald Trump keeps pointing to the Presidential Records Act (PRA) to argue that he has done nothing wrong in the classified documents case, but what does the legislation say?

In 2022, the FBI conducted a raid on Mar-a-Lago, finding more than 100 classified documents that had not been handed back to the government despite several requests and subpoenas being issued. He was subsequently hit with dozens of charges alleging that he withheld the classified documents after leaving the White House, then obstructed the federal governement’s investigation. Trump has pleaded not guilty.

In March of this year, Judge Cannon on the US District Court of South Florida heard arguments regarding the notion that the PRA protects Trump from prosecution and that the case should be dismissed. While Trump’s attorneys argued that the law is too vague about national defense information, experts say that Trump has misinterpreted the law.

Barack Obama-era US attorney Joyce Alene White Vance wrote on X on March 14 that the motions from the Trump team were “barely better than frivolous”.

“Trump insists he designated the documents as personal records under the PRA so his possession of them was authorized and he can’t be prosecuted for it. But he’s never been able to explain how the PRA trumps laws about handling classified and national defense [information]. It doesn’t,” she argued. “Even if, by some stretch of the imagination, a president can hang onto classified information by claiming its personal records, Trump’s still obstructed justice according to multiple first-hand witnesses.”

In the March hearing, Cannon appeared skeptical of Trump’s assault on the Espionage Act as well as his attempt to use the PRA as a shield. But she also suggested that part of Trump’s arguments could be noteworthy when the time comes for jury instructions, asking that each side take on Trump’s argument based on the PRA.

Special Counsel Jack Smith, who brought the charges against Trump, argued in a response to her filing that her interpretation of the legal premise was “wrong.”

But in early April, Cannon denied a motion to dismiss the case based on the PRA. Cannon noted at the time that the indictment made, “no reference to the Presidential Records Act” and that it “does not provide a pre-trial basis to dismiss.”

However, Cannon also denied Smith’s request for final jury instructions and defended her jury instruction form, calling Smith’s request “unprecedented and unjust.”

She argued that her suggested jury instructions shouldn’t be “misconstrued as declaring a final definition of any essential element or asserted defense in this case” and was only “a genuine attempt… to better understand the parties’ competing positions and the questions to be submitted to the jury.”

Put in place after Watergate

The Presidential Records Act was put in place in 1978, four years after the resignation of President Richard Nixon in the wake of the Watergate scandal. The legislation was a reaction to Nixon’s attempt to destroy recordings done in the White House, The Washington Post noted.

The legislation states that presidential records, such as recordings, belong to the American people and that they must be handed over to the National Archives and Records Administration (Nara) at the end of each presidency.

The PRA also applies to vice presidential documents and records, as well as classified information, which is also governed by other legislation. But before Nixon, presidential records had been seen as private property.

The PRA defines presidential records as materials given to the president or his staff intended to “advise or assist the president, in the course of conducting activities which relate to or have an effect upon the carrying out of the constitutional, statutory, or other official or ceremonial duties of the president.”

An ‘absurd’ legal theory

Appearing on Face the Nation on CBS in June last year, Trump’s former Attorney General Bill Barr said he believes Trump lied to the Justice Department in the classified documents case. He added that Trump has “absolutely” mischaracterized the law.

“The legal theory by which he gets to take battle plans and sensitive national security information as his personal papers is absurd. It's just as wacky as the legal doctrine they came up with for having the vice president unilaterally determine who won the election,” Barr said last summer. “The whole purpose of the ... Presidential Records Act is to stop presidents from taking official documents out of the White House – it was passed after Watergate. That's the whole purpose of it.”

“Therefore it restricted what a president can take,” he said at the time, adding that the act states that the president can take materials that are “purely private” and which have “nothing to do with the deliberations of government policy. Obviously, these documents are not purely private.”

“It's obvious and they're not even now arguing that it's purely private. What they're saying is the president just has sweeping discretion to say they are even though they squarely don't fall within the definition. It's an absurd argument,” he said.

In a filing on February 22, Trump’s legal team argued that “the PRA conferred unreviewable discretion on President Trump to designate the records at issue as personal. As such, President Trump’s possession of those records was not ‘unauthorized’ as alleged”.

Meanwhile, prosecutors wrote in a filing on the same day in February that “Nothing in the PRA leaves it to a President to make unilateral, unreviewable, and perpetually binding decisions to remove presidential records from the White House in a manner that thwarts the operation of the PRA — a statute designed to ensure that presidential records are the property of the United States and that they are preserved for the people.”

Cannon declined requests she step aside

It was reported in mid-June that Cannon declined private requests from two federal judges that she step aside from the case after she was assigned to it last year.

The two more experienced South Florida judges told Cannon it would be best if she passed the case on to one of their colleagues, but she ultimately ignored that suggestion and chose to remain in charge of the proceedings, according to The New York Times.

Trump team argues Smith appointment was unlawful

On Friday, a hearing is set to begin as Cannon entertains a motion from the ex-commander-in-chief’s legal team that Smith was unlawfully appointed as special counsel.

The Trump argument that Smith’s appointment was illegal stems from the claim that Attorney General Merrick Garland doesn’t have the legal authority to appoint a special counsel who hasn’t been confirmed by the Senate.

The Department of Justice has argued that the attorney general has the power to appoint “inferior officers” — including special counsels.

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