Donald Trump is still pushing the peculiar argument that the Presidential Records Act somehow bars his criminal prosecution in the classified documents case. Ahead of a Thursday hearing on the subject, Trump adviser Stephen Miller’s America First Legal Foundation weighed in with a brief supporting Trump’s claim.
But special counsel Jack Smith dismantled the group’s position in a response ahead of the hearing, deeming it “without merit.”
By way of background, Trump claims that he had designated sensitive government documents he’s charged with unlawfully retaining as “personal records” under the PRA. From that dubious premise, he says his retention of those records couldn’t have been “unauthorized” under a criminal statute he’s charged with violating. As part of his far-fetched argument, he says it was wrong for the National Archives and Records Administration, which handles presidential records, to even refer the matter to the Justice Department in what ultimately led to Trump’s indictment.
All of those contentions, Smith wrote, “are wrong.”
The “America First” legal group picks up on the referral point. The amicus brief questioned a federal agency’s ability to make criminal referrals without specific authorization to do so. It argued that NARA lacked such authorization and so the indictment must be dismissed. But all of those contentions, Smith wrote, “are wrong.”
The special counsel explained that no such authorization is required for criminal referrals and that under the Miller group’s theory, NARA couldn’t, for example, report if someone illegally brought a firearm into a NARA facility. Smith added that even if such authorization were required, NARA had it, and that its officials “had reason to believe that classified information may have been lost, possibly compromised, or disclosed to an unauthorized person, and further had reason to believe that a criminal violation may have occurred.”
Thursday’s hearing in Florida involves the PRA claim as well as a vagueness argument that Trump — a former president of the United States — wouldn’t have understood that his conduct was criminal. Both arguments should be long shots at best, but you never know in the hands of U.S. District Judge Aileen Cannon.
Subscribe to the Deadline: Legal Newsletter for weekly updates on the top legal stories, including news from the Supreme Court, the Donald Trump cases and more.
