Florida man found with contraband

The latest on the Presidential Records Act saga

Donald Trump contends that he cannot be prosecuted for possessing classified documents at Mar-a-Lago because, while he was President, he exercised his authority under the Presidential Records Act (PRA) to categorize those documents as “personal records.” On April 4, 2024, Judge Cannon denied Trump’s motion to dismiss the criminal indictment based on that theory, while declining to resolve the parties’ dispute on the proper interpretation of the PRA. In this post I will offer my take on this fracas. Executive summary:

1. The PRA defense is terrible, but also kind of funny.

2. The court’s order on this issue was misguided, but

3. P(Doom) on this particular issue is low.

It’s always the person you’d least expect

The prosecution of Trump in Florida, as distinguished from the prosecutions of Trump in New York, Georgia, and the District of Columbia, centers on Trump’s decision to hoard classified documents at Mar-a-Lago after leaving office. Trump is charged with violating 18 U.S.C. § 793(e), which states that a person commits a crime if he has “unauthorized possession of, access to, or control over any document . . . relating to the national defense” and “willfully retains the same and fails to deliver it to the officer or employee of the United States entitled to receive it.” There’s also a few counts against Trump related to his efforts to cover up this crime.

To establish that Trump violated § 793(e), the government must prove that Trump’s “possession” of the documents was “unauthorized.” The government’s theory is straightforward. Trump’s “possession” of the classified documents is “unauthorized” because, well, they’re classified. Trump had the authority to declassify the documents while he was President, but he never did. Trump wasn’t authorized to store classified documents at Mar-a-Lago, and the fact that he previously served as President doesn’t change that.

Trump moved to dismiss the indictment based on the PRA, about which a bit of background is necessary.

Congress passed the PRA in 1978 in response to Richard Nixon’s efforts to destroy presidential records after he resigned. In a nutshell, the PRA states that the United States—not the President—owns presidential records. It requires the President to manage presidential records in various ways, and provides that the National Archives and Records Administration will take custody of presidential records after the President leaves office.

Congress recognized that some of the President’s documents will be personal rather than presidential. “Personal records” are defined under 44 U.S.C. § 2201(3) as documents of “a purely private or nonpublic character which do not relate to or have an effect upon the carrying out of the constitutional, statutory, or other official or ceremonial duties of the President.”

The PRA provides: “Documentary materials produced or received by the President, the President’s staff, or units or individuals in the Executive Office of the President the function of which is to advise or assist the President, shall, to the extent practicable, be categorized as presidential records or personal records upon their creation or receipt and be filed separately.” 44 U.S.C. § 2203(b). For documents “categorized as presidential records,” the PRA sets forth a series of rules governing preservation and access.

Trump’s theory goes like this:

• The charged crime, 18 U.S.C. § 793(e), requires the government to prove “unauthorized possession of .. any document . . . relating to the national defense.”

• When he was President, Trump categorized the documents found at Mar-a-Lago as personal records, rather than presidential records, under the PRA.

• Therefore, Trump’s possession of those records wasn’t “unauthorized,” which means he’s innocent.

There are three problems with this argument.

First, the President’s categorization of a document as “personal” does not wipe out all laws regulating the possession of that document. Under the PRA, categorizing a document as a “personal record” establishes that it’s not a “presidential record.” As such, the regulations governing “presidential records” don’t apply. That’s the sole effect of the categorization. That categorization doesn’t transform the document into a kind of video-game Amulet of Invincibility that shields its bearer from generally applicable criminal laws.

Here’s an example. Supposed Trump received a shipment of obscene materials when he was President. Those documents would—I’d hope—be categorized as personal rather than presidential under the PRA. Suppose Trump, after leaving office, took the obscene materials from the White House to Mar-a-Lago and kept them there. Would he be guilty of possessing obscene materials? Of course he’d be guilty. The fact that he categorized these records as personal records while he was President doesn’t mean he has some kind of permanent authorization to possess them after he left office, free of all legal restrictions. It just means that they’re personal, rather than presidential, under the PRA. If the possession of those personal records is illegal, he still goes to jail.

But, you might say, that’s an unfair comparison because Trump was authorized to declassify the documents while he was President, whereas he had no authority to legalize the possession of obscene materials. Well, it’s true that he was authorized to declassify the documents while he was President. But he didn’t. And so the classified documents are contraband in exactly the way that obscenity is contraband.

Second, it is blindingly obvious that these documents are not, in fact, personal records. Remember the definition of “personal record”: it’s a document “of a purely private or nonpublic character which do not relate to or have an effect upon the carrying out of the constitutional, statutory, or other official or ceremonial duties of the President.” Classified documents, prepared by other people for purposes of advising the Commander-in-Chief, plainly “relate to … the carrying out of the constitutional, statutory, or other official … duties of the President.” That’s why they’re classified! Saying these documents meet the statutory definition of “personal records” is a nonsense statement, roughly like saying “all people born in Canada are American citizens” or “any U.S. Supreme Court decision can be reversed by the World Court.”

Trump doesn’t actually contend that these documents meet the statutory definition of “personal records.” Instead, he contends that (a) he categorized the documents as “personal records” as President, and (b) that categorization is unreviewable. His theory is that once he says a document is a “personal record,” it’s a “personal record,” and that’s just the way it’s going to be.

Well, to begin with the latter point, why would this determination be unreviewable? Courts typically do not defer blindly to decisions by the Executive Branch determining that particular legal standards are satisfied. Why here?

This theory is especially implausible in the context of the PRA, which was meant to prevent the President from destroying presidential records by requiring the President to preserve presidential records and then turn them over to the National Archives after leaving office. Do you really think Congress intended to confer the President with unilateral, unreviewable authority to nullify the PRA by simply deeming documents to be “personal records” whenever he felt like it?

I also cannot help but observe that Trump’s argument is an open, avowed declaration of corruption. I think one reasonable definition of a “corrupt action” is “an action taken purely for personal benefit with no legal justification whatsoever.” That’s exactly what Trump is saying he did. There’s obviously no legal justification for saying these documents satisfy the statutory definition of “personal records,” and the sole reason he purportedly categorized the documents as “personal records” was for the personal benefit of allowing him to continue possessing them after he left office.

I guess I wouldn’t have expected a high-level political official—particularly a former President!—to depart from norms of good government in this way. It does make me wonder whether Trump is the right man for the job going forward.

In any event, let’s accept the premise that the President’s decision to categorize a document as a “personal record” is unreviewable. That brings us to the third problem with Trump’s argument—Trump never, in fact, categorized the documents as “personal records” while he was President. To his credit! Maybe he’s not so corrupt after all.

As DOJ lovingly recounts in a recent filing, Trump repeatedly acknowledged that these documents were presidential records for over a year after leaving office. The tide turned in February 2022, when Tom Fitton, the Judicial Watch guy (who isn’t a lawyer), suggested on Twitter that Trump pursue this defense, and Trump’s lawyers decided to run with it.

There is nothing inherently wrong with the Republican nominee for President adopting a criminal defense strategy based on a random conservative activist’s Twitter post. In a way, it is inspiring. The law is, after all, for the People. Kids: As long as you’ve got a Twitter account, an idea, and a dream, you, too, can decide how Trump defends himself from felony charges.

However, this episode underscores that Trump did not, in fact, categorize the documents as personal records while he was President. Even if you think that the Founders would not have wanted courts to second-guess the Commander-in-Chief’s exercise of discretion on this issue, the fact remains that the Commander-in-Chief did not, in fact, exercise his discretion.

Again, Trump doesn’t seem to dispute that he didn’t actually make a contemporaneous decision to categorize the documents are “personal records.” Instead, he argues that his decision to vamoose off to Mar-a-Lago with the classified documents should be deemed to constitute the categorization of the documents as “personal records,” even though this thought never entered his brain until over a year later.

To which I would respond … why would we pretend Trump made the categorization, even though he didn’t? I understand that in law, as in life, something things are deemed to be other things. If you search for “deem!” on Westlaw, you will get thousands of hits. But when we deem, we have—or at least should have—good reasons for deeming. Here, why deem? Is it just because we want Trump to win rather than lose?

Uh-Oh

The fact that Trump made these bad arguments isn’t noteworthy. For Trump, making bad arguments in litigation is kind of like cutting your fingernails—a quotidian, unmemorable occurrence. And not just Trump. Litigation, particularly trial-court criminal litigation, is a cesspool of bad arguments.

But what is noteworthy is an order by the district court in response to Trump’s filing. In that order, the district court asked the parties to draft proposed jury instructions, and then said this:

With respect to the proposed language pertinent to the issue of “unauthorized possession” specifically, the parties must engage with the following competing scenarios and offer alternative draft text that assumes each scenario to be a correct formulation of the law to be issued to the jury, while reserving counterarguments.

(a) In a prosecution of a former president for allegedly retaining documents in violation of 18 U.S.C. § 793(e), a jury is permitted to examine a record retained by a former president in his/her personal possession at the end of his/her presidency and make a factual finding as to whether the government has proven beyond a reasonable doubt that it is personal or presidential using the definitions set forth in the Presidential Records Act (PRA).

(b) A president has sole authority under the PRA to categorize records as personal or presidential during his/her presidency. Neither a court nor a jury is permitted to make or review such a categorization decision. Although there is no formal means in the PRA by which a president is to make that categorization, an outgoing president’s decision to exclude what he/she considers to be personal records from presidential records transmitted to the National Archives and Records Administration constitutes a president’s categorization of those records as personal under the PRA.

Well, this order undoubtedly set off alarm bells, sirens, and klaxons in the Special Counsel’s office. Why?

Because both of these alternatives begin from the premise that, if a record is “personal,” then possession of that document is, in fact, “authorized,” which the Special Counsel thinks is an error of law. Also, although the court’s order isn’t completely clear on this issue, it appears that both of these alternatives assume that it doesn’t matter whether Trump actually categorized the documents as “personal” when he left office—they both implicitly accept the “deeming” theory. These alternatives diverge in only one respect: in the first alternative, the jury gets to decide whether the document is in fact personal or presidential, and in the second alternative, Trump is basically acquitted by default.

The Special Counsel submitted an amusingly irritable response filing making clear that both of these alternatives rested on an error of law. He also requested that the Court resolve this dispute of law well in advance of trial, so the government could seek appellate review in an orderly fashion. (The government can’t wait until after the trial to seek appellate review, because the Double Jeopardy Clause prohibits it from appealing an acquittal, even if that acquittal is the product of incorrect jury instructions.)

Just Asking Questions

On April 4, 2024, the district court issued an order that (1) denied Trump’s motion to dismiss the indictment based on the PRA, and (2) swatted down the Special Counsel’s request to resolve this crucial legal issue before the trial. Let’s take a look at that order.

First, the court denied the motion to dismiss the indictment based on the PRA. Phew!

With respect to the § 793(e) counts, the court reasoned that those counts “make no reference to the Presidential Records Act, nor do they rely on that statute for purposes of stating an offense.” It continued: “More generally, the Superseding Indictment specifies the nature of the accusations against Defendant Trump in a lengthy speaking indictment with embedded excerpts from investigative interviews, photographs, and other content. For these reasons, accepting the allegations of the Superseding Indictment as true, the Presidential Records Act does not provide a pre-trial basis to dismiss under Rule 12(b)(3)(B)(v)."

I’m not sure that’s right. A criminal defendant may move to dismiss a criminal indictment on the ground that the facts alleged in the indictment—even if true—don’t constitute a federal crime as a matter of law. And that is, in fact, what Trump was arguing. To state a claim under § 793(e), the government must show that the possession was “unauthorized.” Trump’s argument is that: (a) If Trump brought the documents with him to Mar-a-Lago, then he classified them as “personal” as a matter of law; (b) that classification as “personal” is unreviewable; and (c) if a document is “personal” under the PRA, possession is authorized as a matter of law. If each of these propositions is daisy-chained together, they do, indeed, establish that Trump is not guilty as a matter of law, even assuming the truth of all the allegations in the indictment.

The district court reasoned that the the counts do not “reference” or “rely on” the Presidential Records Act. So what? Although a motion to dismiss can’t rely on facts outside the indictment, it can certainly rely on law outside the indictment. A court can always take judicial notice of a provision of the United States Code. If there’s a statute that establishes the defendant’s innocence as a matter of law, even assuming the truth of all facts in the indictment, why proceed with the trial?

I don’t want to criticize this portion of the order too much. I can see why the court would want to defer a detailed legal analysis of the PRA until the facts become clearer. But this reasoning creates a practical problem—it provides zero guidance to the parties as to what the court thinks the PRA actually means.

This problem is exacerbated by the next part of the court’s order, which I will quote in its entirety below:

Separately, to the extent the Special Counsel demands an anticipatory finalization of jury instructions prior to trial, prior to a charge conference, and prior to the presentation of trial defenses and evidence, the Court declines that demand as unprecedented and unjust [see ECF No. 428]. The Court’s Order soliciting preliminary draft instructions on certain counts should not be misconstrued as declaring a final definition on any essential element or asserted defense in this case. Nor should it be interpreted as anything other than what it was: a genuine attempt, in the context of the upcoming trial, to better understand the parties’ competing positions and the questions to be submitted to the jury in this complex case of first impression [ECF No. 407]. As always, any party remains free to avail itself of whatever appellate options it sees fit to invoke, as permitted by law.

This is unfair to the Special Counsel, in my opinion.

• The Special Counsel definitely wasn’t “demanding” an “anticipatory finalization of jury instructions prior to trial.” Instead, the Special Counsel was asking the court to resolve a single, discrete question of law before the trial—i.e., whether the classification of a document as “personal” under the PRA renders the possession of the document “authorized” for purposes of § 793(e).

• Given that the court itself reached out to the parties and asked them to propose jury instructions on this discrete issue of law, I wouldn’t call it “unprecedented and unjust” for the Special Counsel to ask the court to resolve the issue, rather than just stew on it.

• Perhaps the court was merely trying to “better understand the parties’ competing positions,” and that is fine. It’s Just Asking Questions! But if the court requests that the parties submit two versions of jury instructions, both of which are premised on a particular interpretation of the law, then it’s reasonable for the Special Counsel to infer that the court does, indeed, think that interpretation of the law is correct. And so the Special Counsel is saying: if that’s what you think, just say so, so we can appeal your order in an orderly fashion. This is a very reasonable ask.

• As for the court’s reminder that the Special Counsel is entitled to invoke appellate options “as permitted by law,” the problem for the Special Counsel is that he can’t appeal until the court gives him something to appeal. If the district court concludes, as a matter of law, that classifying a document as “personal” renders it “authorized” for purposes of § 793(e), then the Special Counsel can appeal that decision via a petition for a writ of mandamus. But if the district court says it’s still thinking about it, there’s nothing for the court of appeals to do.

The district court is certainly allowed to proceed in this way. There’s no rule of criminal procedure requiring the court to resolve a threshold legal issue before the trial. If the Special Counsel petitions the Eleventh Circuit for a writ of mandamus directing the district court to decide the issue before trial, the petition will be denied. Courts of appeals issue writs of mandamus only when district courts act contrary to law, and here the district court hasn’t done that.

Still, it’s hard to see any justification for the district court proceeding in this way. The district court is setting up a scenario in which, in the middle of trial, it rules in Trump’s favor on the PRA issue. This will force the Special Counsel to seek a writ of mandamus from the Eleventh Circuit and get a court order within hours. Supreme Court review might be sought by both sides, again yielding an extremely truncated proceeding lasting a few hours. Proceeding in this fashion is burdensome on the parties and the higher courts, reduces the quality of judicial decisionmaking, and adds pointless drama. Why do this when you can avoid it?

(This is the 8-bit version of the AI art. Someone really needs to make this case into a video game.)

Don’t Panic

Everything is going to be fine.

The probability of the doom scenario—the district court issuing a wrong, pro-Trump jury instruction in the middle of trial, forcing the Special Counsel to frantically seek a writ of mandamus from the Eleventh Circuit while the confused jury sits twiddling its thumbs and everyone goes crazy—is low. That is a possible outcome, perhaps even the modal outcome, but there are many, many forking paths in the multiverse here. The court might rule in the Special Counsel’s favor, Trump might drop the defense, the Special Counsel might decide the evidence is helpful to it and drop its objection to the jury instruction, the trial might be delayed for a different reason … who knows? The best argument for the district court’s approach is that it avoids a dramatic ruling on the PRA until it’s certain such a ruling is needed.

(Actually, the true doom scenario would be the district court acquitting Trump after the government rests its case, which it has the authority to do and which wouldn’t be appealable. But I view that scenario as extremely unlikely. If it happens, I will delete this post.)

And if the government does have to scramble and file a writ of mandamus, the Eleventh Circuit, and ultimately the Supreme Court, are perfectly capable of issuing a reasoned ruling in the middle of the trial. It will be stressful for everyone, but they will get the job done.

The legal system, like hyperspace, moves at the speed of plot. Appellate litigation is prone to baffling delays—it’s not uncommon to wait two or more years for short decisions that could have been written in a day—but when appellate courts need to issue decisions within hours, they do. In capital cases, emergency stay applications routinely move from the district court, to the court of appeals, to the Supreme Court within hours. If the higher courts think that the district court is derailing the trial, they will fix the problem before the trial ends.

So enjoy the eclipse and worry about other things. (For now.)