Tuesday, July 23, 2024

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Special Counsel Jack Smith Rips Apart Trump’s Bogus ‘Personal Records’ Claim in Classified Documents Case

Trump's "Personal Records" Defense Originates from Conservative Activist, Not His Own Team, Prosecutors Reveal.

Jack Smith

In a late night court filing on Tuesday, Special Counsel Jack Smith launched a blistering counterattack against U.S. District Judge Aileen M. Cannon’s nonsensical reasoning that would hand Trump a win in his classified documents case. Smith’s court filing not only slammed Judge Cannon’s flawed reasoning but also exposed the origins of Trump’s latest defense, which appears to be nothing more than a far-fetched legal theory concocted by conservative activist Tom Fitton.

The saga began with a tweet from Tom Fitton, the head of the conservative nonprofit Judicial Watch, who argued that Trump had the discretion to retain documents as personal records while in office. Fitton’s perspective was informed by a 2012 case involving former President Bill Clinton’s audio recordings, in which a judge ruled that the president had the sole discretion to segregate personal materials from presidential records.

Seizing upon this precedent, Fitton contacted Trump’s post-presidency office, offering to discuss the issue with the former president and even providing a proposed public statement for Trump’s consideration. Although Trump never issued the statement, it appears that some of Fitton’s message got through, as evidenced by Trump’s “unusually lawyerly response” to the controversy just two days later.

Federal prosecutors have since revealed the extent to which they have questioned Trump’s advisers, noting that before Fitton’s intervention, no one in Trump’s circle had ever heard the former president claim that he was designating records as personal or that his removal of records amounted to such a designation under the Presidential Records Act (PRA). In fact, every witness questioned by investigators had never heard Trump make such a claim.

The origin story of the “they’re personal” defense is now pivotal, as federal prosecutors scramble to stop Judge Cannon from adopting this legal theory, which would effectively hand Trump a total victory in the case against him. Prosecutors have cautioned Judge Cannon against embracing this alternative reading of the PRA, stressing that Trump hasn’t even formally asserted that he deemed these government documents as his own belongings.

Special Counsel Smith has warned Judge Cannon that she is pursuing a legal premise that “is wrong” and has threatened to appeal to a higher court if she rules the PRA can protect Trump from prosecution. Smith’s filing represents a stark confrontation between the judge and the prosecutor, illustrating the potential for a ruling by Cannon to eviscerate the historic case and delay the trial well beyond November’s presidential election.

Smith has clarified that the PRA has no bearing on the national security crimes Trump is accused of committing, arguing that the law “should not play any role at trial at all.” He has also questioned the premise of Cannon’s order, which indulged some mangled interpretations of laws pushed by Trump’s lawyers and supporters. Essentially, Cannon is doing the bidding of the man who appointed her in the first place. 

The standoff between Smith and Cannon is a clear indication of the frustration felt by the prosecution team, who want the judge to make her ruling already and take ownership if she believes Trump is right on the law. Smith’s filing is a direct challenge to Cannon’s jurisprudence and raises the possibility that he might try to go around her as the case proceeds.

Perhaps most damning is Smith’s assertion that Trump’s justification for retaining the classified documents was effectively invented long after he took them, by a conservative activist who is not even an attorney and considered a joke by actual attorneys. This revelation, coupled with the fact that no key witness has any knowledge of Trump designating the documents as personal records, suggests that the former president’s defense is nothing more than a post hoc legal invention.

What is particularly galling about Trump’s defense is the way in which it seeks to twist and distort the Presidential Records Act to serve his own interests. The PRA was enacted in the wake of the Watergate scandal to ensure that presidential records would be preserved and made available to the public, rather than being subject to the whims of individual presidents. By claiming that he had the authority to designate any document as a personal record, even if it contained highly classified information, Trump is effectively arguing that he is above the law. 

This is a deeply dangerous and anti-democratic position, as it suggests that presidents have unfettered power to do as they please with government documents, regardless of their sensitivity or importance. It is a position that is fundamentally at odds with the importance of safeguarding our national security.

Special Counsel Jack Smith’s blistering counterattack against Judge Aileen Cannon’s flawed reasoning in the Trump classified documents case has exposed the absurdity and danger of the former president’s defense. By relying on a far-fetched legal theory, Trump’s legal team is effectively arguing that he is above the law and has unfettered power to do as he pleases with government documents, regardless of their sensitivity or importance. It is imperative that Judge Cannon reject this specious argument and allow the case against Trump to proceed based on the facts and the law, rather than partisan politics and blind loyalty to a corrupt former president.