Jack Smith's Espionage Act Charges, Part 6: Category Error?
Federal Records and Presidential Records
Which is the category relevant to the indictment? ”Indisputably presidential,”1 says the Special Counsel, with David Harbach insisting that:
…the only possible inference from the allegations in the superseding indictment, the descriptions in the superseding indictment of what these documents are, which must be taken as true at this stage, the only possible inference from those allegations is that they were presidential and not personal.2
In Jay Bratt’s conception, during the audio-recorded conversation at Bedminster with Meadows and his ghostwriter,3 Trump “doesn't say there, I can show you this because I designated it as personal. In fact, he is saying the exact opposite, that these are presidential records, core presidential records that he has custody of, and that they remain classified.”4
After perusing the indictment last June, Eric Columbus, who has done time at the Department of Justice, foresaw a future argument from the Special Counsel that at least some materials in counts 1-32 were from the FOIAble basket of federal records, i.e. the agency records category.5 Frank Friday reached a similar conclusion.6
Columbus’ and Friday’s inference about record category is a reasonable one. You would be hard pressed to conclude that there are any charged documents not subject to the Federal Records Act if you relied on the Special Counsel’s characterization of the indictment in recent filings. On the subject of the material with classification markings that was shipped to Florida, Jack Smith writes in one brief that “t]hese documents had been generated by members of the intelligence community”7 and “[t]hese classified documents were originated by and implicated the equities of components of the USIC”8 in another. The “Intelligence Community” is statutorily defined in the Section 3(4) of the National Security Act of 1947 as amended (50 U.S.C. § 3003(4)) and all 18 current entities fall under the Federal Records Act. Not every official government document submitted to the President or in the possession of the Chief of Staff is a presidential record subject to mandatory retention, as the DOJ itself argues with respect to the Crossfire Hurricane binder Mark Meadows dropped of at the Justice Department on January 20, 2021.9 In 2007, the Public Interest Declassification Board revealed that “[t]he President’s Daily Brief (PDB), which is prepared each day by the CIA, has not been retained as part of the records of the White House since the beginning of the Reagan administration.”10 The Special Counsel’s own gloss on the indictment rules out the conclusion it represents as inescapable to the Court.
Both the FRA and the Presidential Records Act may prove relevant. In a motion filed in February, Trump’s lawyers attributed authorship of some of the materials at issue in the 32 Espionage Act counts to the National Security Council.11 In 1996, in a break with prior treatment of the Council’s records as agency records, a federal appellate court determined that the National Security Council generates presidential records.12
From the characterization of White House policies on meeting notes in Hur’s report,13 it is hardly incontrovertible that the “handwritten annotation” alleged in Counts 3 and 2314 makes those documents “presidential records.” If the annotations were not shared or circulated or their content was clearly unofficial, their presence would neither transfer a document from the agency records category to the presidential records category nor turn non-record material into a record.
Government’s Opposition To Donald J. Trump’s Motion To Dismiss The Indictment Based On The Presidential Records Act, 3/7/24, p. 1: “Second, the charged documents are indisputably presidential, not personal, and Trump offers no basis to conclude otherwise.”
Transcript Of Motions To Dismiss at 112-3, United States v. Trump, et al., No. 23-cr-80101 (S.D. Fla. March 14, 2024)
Superseding Indictment, ¶ 35
Transcript Of Motions To Dismiss at 43, United States v. Trump, et al., No. 23-cr-80101 (S.D. Fla. March 14, 2024)
The Presidential Records Act, Clinton's Socks, and Trump's Boxes, Eric Columbus, 6/21/23: “Finally, the indictment strongly suggests that most—and possibly all—of the documents in question were actually agency records, prepared by agencies and at some point shown to the president, which are governed by the Federal Records Act, not the PRA.”
Were They Spying on Trump All Along?, Frank Friday, 6/21/23
Government’s Opposition To Defendant Donald J. Trump’s Motion To Dismiss The Indictment Based On Selective And Vindictive Prosecution, 3/7/24, p. 1: “When Donald J. Trump left the White House in January 2021, he arranged for scores of boxes holding hundreds of highly classified documents to be sent to the Mar-a-Lago Club, where he had a personal residence. These documents had been generated by members of the intelligence community and provided to Trump during his term in office, to facilitate the execution of his duties as President of the United States.”
Government’s Opposition To Donald J. Trump’s Motion To Dismiss The Indictment Based On The Presidential Records Act, 3/7/24, p. 3: “As he departed the White House, he took with him scores of boxes, including many containing classified documents, to the Mar-a-Lago Club, where he had a residence. Id. ¶ 4. “Trump was not authorized to possess or retain those classified documents.” Id. These classified documents were originated by and implicated the equities of components of the USIC. Id. ¶ 22.”
Defendants’ Memorandum Of Points And Authorities In Support Of Their Cross-Motion For Summary Judgment And In Opposition To Plaintiff’s Motion For Partial Summary Judgment at 4 and 5, Solomon v. Garland, et al., No. 23-cv-00759-RJL, (D.D.C. September 7, 2023): “On January 19, 2021, then-President Trump issued a Memorandum concerning a binder of materials related to the FBI’s Crossfire Hurricane investigation. These were federal records that DOJ had provided to the White House at the President’s request.“ (p. 4)
“The records that then-Chief of Staff Meadows transferred back to DOJ—consistent with “routine practice for agency records that are undergoing declassification or similar review by other agencies or the White House,” Email from Gary Stern to Kash Patel (Aug. 17, 2022), Pl.’s Mot., Ex. 2, ECF No. 16-4, at 1—have properly remained with DOJ as agency records subject to the Federal Records Act.” (p. 5)
Defendants’ Motion to Compel Discovery, 1/16/24, p. 21: “The Council was responsible for the creation and handling of many of the documents at issue, and the Special Counsel’s Office will be required to rely on personnel from the National Security Council at trial to demonstrate that the documents it authored are classified and constitute information “relating to the national defense” (“NDI”) under 18 U.S.C. § 793(e).”
Armstrong v. Exec. Office of the President, 90 F.3d 553, 555-56 (D.C. Cir. 1996):“Because the NSC operates in close proximity to the President, who chairs it, and because the NSC does not exercise substantial independent authority, we conclude that the NSC is not an agency within the meaning of the FOIA.”
Hur Report, pp. 180-1: “Counsel note that the Presidential Records Act excludes personal records (which can include diaries) from government ownership and preexisting White House guidance has interpreted the Act to exclude rough meeting notes from its definition of records.”
Superseding Indictment ¶ 93, United States v. Trump, et al., No. 23-cr-80101 (S.D. Fla. July 27, 2023)