Jack Smith’s Espionage Act Charges, Part 1: Unauthorized Possession
"Unauthorized possession" under 18 U.S.C. § 793(e)
“Unauthorized possession” and Section 793 of the Espionage Act
The legal turf is not well trodden for two elements of a 793(e) offense, “unauthorized possession”1 and “fails to deliver.”2
To convict on his Section 793 charges, the Special Counsel must prove that:
DONALD J. TRUMP, having unauthorized possession of, access to, and control over documents relating to the national defense, did willfully retain the documents and fail to deliver them to the officer and employee of the United States entitled to receive them; that is—TRUMP, without authorization, retained at The Mar-a-Lago Club documents relating to the national defense...3 [emphasis added]
Both parties read the Superseding Indictment to allege that Trump was still President when he made “the decision to spirit the boxes away”4 and hold on to the documents charged in Counts 1-32.5 Retention, says the Special Counsel, became unauthorized as soon as the curtain fell on Trump’s presidency: “[w]hen those duties ended, so too did Trump’s authorization to possess the documents.”6 What “magic wand” attaches 793(e) liability “at precisely Noon on January 20?”7
The Special Counsel contends that “the element of unauthorized possession depends on the plain language of the statute, Executive Order 13526, and the executive order’s implementing regulations.”8 Special Counsels Jack Smith9 and Robert Hur10 both accept that Presidents retain ownership of items meeting the Presidential Records Act’s definition of “personal records.” Smith has endorsed11 Hur’s rejection of “the argument that compliance with the Presidential Records Act authorizes former presidents and vice presidents to retain national defense information in unsecured and unapproved locations.”12
The Special Counsel’s office does not tie 793(e) liability to infringement of the PRA, subscribing to “the premise that the PRA is irrelevant to the element of unauthorized possession.”13 Assistant Special Counsel Jay Bratt claimed the Act merely “reinforces the notice” that keeping documents is a no-no.14 Fellow prosecutor David Harbach said at oral argument that “even if they are personal, does that have anything to do with whether they are authorized under 793? And we say no.”15 Reversing course and arguing that 793(e) liability in fact arises from violating the Presidential Records Act would seem to require forfeiting the claim that no violation of the PRA need be alleged in order to bring 793(e) charges against former Presidents for “unauthorized possession” of properly categorized “personal records” or other personal property.
Smith allows that Presidents are not bound by internal executive branch rules and regulations while in office, but insists they snap back into force with a vengeance post-Presidency:
The United States government has adopted rules that govern the possession of classified information. Those rules do not apply to a sitting President but apply to former Presidents after their term in office has ended.16
For this post-Presidency snapback argument, the Special Counsel cites the “need-to-know”17 waiver that Executive Order 13526 contemplates for former Presidents18 and the Eleventh Circuit’s discussion19 of access prerequisites:
As the Eleventh Circuit has made clear, the requirements of E.O. 13526 apply “equally to former Presidents, unless the current administration, in its discretion, chooses to waive [them].” Trump v. United States, No 22-13005, 2022 WL 4366684, at *8 (11th Cir. Sept. 21, 2022).20
In short, during the period charged in the indictment, authorization to possess classified information was governed by Executive Order 13526 and its implementing regulations, which applied to Trump as a former President. See EO § 4.4(a)(3); Trump v. United States, 2022 WL 4366684, at *8. Nothing in the PRA remotely purports to override Executive Order 13526, and construing it in that atextual manner would raise serious constitutional concerns.21
The regulatory authorities in the government’s suggested instruction on “unauthorized possession” are Executive Order 13526, §§ 4.1, 4.4, 6.1(dd) and 32 C.F.R. § 2001.43(b)(1), (2):
“Unauthorized possession” means possession without official approval or permission.[12] The United States government has adopted rules that govern the possession of classified information.[13] Those rules do not apply to a sitting President but apply to former Presidents after their term in office has ended.[14] Under those rules, an individual’s possession of classified information is unauthorized if that individual does not hold a security clearance or the individual does not have a need to know the information.[15] “Need to know” means an appropriate government official has determined that the individual requires access to the classified information in order to perform or assist in a lawful and authorized government function.[16] In addition, even if an individual holds a security clearance and has a need to know classified information, the individual’s possession of the classified information is unauthorized if the individual removes the classified information from a secure facility or possesses the information outside of a secure facility.[17]22
[12] See ECF No. 373 at 6; see also Webster’s New World College Dictionary 95 (4th ed. 2002) (defining “authorize” as “to give official approval to or permission for”); Merriam-Webster Dictionary, https://www.merriam-webster.com/dictionary/authorized (defining “authorized” as “sanctioned by authority: having or done with legal or official approval”).
[13] Executive Order 13526.
[14] 50 U.S.C. § 3161(a)23; EO § 4.4(a)(3); Trump v. United States, No. 22-13005, 2022 WL 4366684, at *8 (11th Cir. Sept. 21, 2022).
[15] EO § 4.1(a); see Ford Instructions at 45.
[16] EO § 6.1(dd); see Ford Instructions at 45.24
[17] EO § 4.1(g); 32 C.F.R. § 2001.43(b)(1), (2); see Ford Instructions at 45.25
The defense maintains that the Superseding Indictment’s
[m]isleading references to EO 13526 give [the] false impression that the Order applies to a President’s disposition of documents, including for a post-Presidential purpose (e.g., post-Presidential impeachment), rather than post-Presidential requests for expanded access not obtained while in office.26
Bratt told the court that “4.4 is quite clear about how a former president has access to and, essentially, where the former president would have access to classified information post-presidency.”27
Former Presidents are a recent addition to the waiver provision. As recently as Clinton’s 1995 Executive Order 12958, historical researchers and former presidential appointees were the only people listed as eligible for “need-to-know” waivers.28 Bush’s 2003 amendment added past Presidents and Vice Presidents to the “need-to-know” waiver section.29
“A former President’s right to access records created during his or her Administration is guaranteed by statute, see 44 U.S.C. § 2205(3), not the Constitution,”30 proclaimed the Department of Justice in other proceedings. 44 U.S.C. § 2205(3) provides that “the Presidential records of a former President shall be available to such former President or the former President's designated representative.” Hur made plain that former Presidents and Vice Presidents need not sign non-disclosure agreements31 to browse their classified records at the National Archives.32 Availability of those records to a former President who has not signed an approved nondisclosure agreement infringes “the plain language”33 of § 4.1(a)(2) of Executive Order 13526. (Like Biden, Trump never executed such an agreement.)34
Paragraph 3.7 of NARA’s Classified Information Security Program Handbook (“NARA 202-H1”) indicates that classified information is available to former Presidents for executive privilege review and research pursuant to the Presidential Records Act.35 The “need-to-know” waiver is not cited in 3.7(a) (“Executive Privilege Reviews”) or (b) (“Research”). The waiver is the subject of 3.7(c), which reads in full: “Additionally, former Presidents and Vice Presidents may be afforded access to classified information in accordance with section 4.4 of E.O. 13526”.36
The conditions for access to classified material outlined in paragraph 3.1(a) of NARA 202-H1, which “every employee and contractor who works at a NARA facility must follow to protect all forms of classified information,”37 include possession of a requisite security clearance, execution of non-disclosure agreements, and completion of security training and briefings.38
NARA Directive 273 states that “NARA will not grant access to classified information to any individual, unless that individual has a security clearance at the same (or higher) level as the information”39 and further indicates that the rule encompasses everyone.40 NARA 202-H1 assigns “final responsibility” to confirm recipients’ authorization status to the designated NARA employee,41 with some tasks requiring consultation with the Security Management Division (“BX”).42
Hur divulges that, while David Petraeus had multiple non-disclosure agreements to his name, “by virtue of his unique constitutional role as vice president, Mr. Biden signed no such non-disclosure agreements or attestations.”43 Though Smith states peremptorily that “[p]ursuant to EO 13526, classified information can be accessed only by a person who an appropriate United States official determines is eligible for such access; who has signed an approved non-disclosure agreement; and who has a “need to know” the classified information,”44 the lack of a non-disclosure agreement was no impediment to Biden flipping through classified notecards at the Archives in the spring and summer of 2017.45 The form Hur mentions being signed on the second visit, “Notice to Users of NARA Classified Research Rooms”46 (NA Form 14128),47 is not on NARA’s list of six forms that “officially document an individual’s access to the various categories of classified information.”48
Smith is categorical in his claim that “the classified documents charged in the Superseding Indictment” are “straightforward presidential records.”49 A former President’s records “shall be available” to him without exception in the “restricted access”50 period, but Congress has imposed “need-to-know” on the sitting President, specifying that predecessors’ records will be withheld unless they “contain information that is needed for the conduct of current business of the incumbent President's office.”51 The PRA circumscribes the President’s authority to control access to this subset of classified materials owned by and under the control of United States. Some secret materials from within the National Security Council or the Office of the President will be more available to a former President than to the incumbent.
The Special Counsel emphasizes “possession,” asserting that “classification status does establish who may lawfully possess classified documents, and under what circumstances”52 while fretting that “Congressional regulation that would override the President’s judgment by giving a private party the right to possess classified information that the President would disallow raises a significant constitutional question.”53 However, Executive Order 13526, the “executive order governing who may possess classified information and under what circumstances,”54 says little about “possession” of classified information. None of the four appearances of “possess*” in the order’s text affects the instant case.55 Though the Special Counsel fulminates that Trump “never received a waiver entitling him, as a former President, to possess it,”56 neither “possess” nor “retain” appears in “Part 4—Safeguarding” of the order. As shown by their titles, § 4.1 (“General Restrictions on Access”) and § 4.4 (“Access by Historical Researchers and Certain Former Government Personnel”) concern “access.”
Unless a former President were appointed as an agency head, a senior agency official, or Director of National Intelligence, he would not be in a position to violate Executive Order 13526 § 4.1(g),57 a provision (cited in a footnote to the Special Counsel’s proposed jury instructions)58 that assigns the task of instituting appropriate “controls” on classified information to those senior executive branch officials.
The classified information storage rules, 32 C.F.R. § 2001.43(b)(1), (2), cited in the same footnote to the Special Counsel’s proposed jury instructions59 are in Subpart E (“Safeguarding”) of 32 CFR Part 2001, an Information Security Oversight Office implementing directive issued pursuant to § 5.1(a) and (b) of Executive Order 13526. § 5.1(b) directs a delegation of certain responsibilities to the ISOO Director.60 Implementing directives promulgated pursuant to § 5.1(a) “shall be binding on the agencies” and “establish standards for,”61 inter alia, “safeguarding classified information, which shall pertain to the handling, storage, distribution, transmittal, and destruction of and accounting for classified information.”62
Executive Order 13526 defines “agency” in § 6.1(b):
‘‘Agency’’ means any ‘‘Executive agency,’’ as defined in 5 U.S.C. 105; any ‘‘Military department’’ as defined in 5 U.S.C. 102; and any other entity within the executive branch that comes into the possession of classified information.63
A former President can no more be an “agency” under this definition than he could be one for purposes of the Freedom of Information Act.64 The Bush Administration considered the President and Vice President not to qualify as “agencies”65 under § 6.1(b) of Executive Order 12958, as amended,66 which used the same definition of agency as § 6.1(b) of Executive Order 13526. The Bush-era provision regarding agencies’ mandatory compliance with implementing directives is substantively indistinguishable from Executive Order 13526, as the only change to the sentence “[t]hese directives shall be binding on the agencies” in § 5.1(a) is the substitution of “on” for “upon.”67 In January 2007, the Director of ISOO had asked the Attorney General for an opinion on the Office of the Vice President’s status and its obligation to comply with provisions of Executive Order 12958, as amended, including 32 CFR 2001.80 and 2001.81 of the implementing directive then in effect.68
One riddle of Smith’s snapback theory is how non-agency former Presidents, who may well not have qualified as “agencies” while in office, come under the jurisdiction of a directive that “shall be binding on the agencies.”69 Pursuant to a provision of the Regulatory Flexibility Act codified at 5 U.S.C. § 605(b), the ISOO’s implementing directive for Executive Order 13526 includes a certification of the rule’s limited impact and “a statement providing the factual basis for such certification”:
As required by the Regulatory Flexibility Act, we certify that this rule will not have a significant impact on a substantial number of small entities because it applies only to Federal agencies.70 [emphasis added]
Another riddle is how former Presidents can lawfully access classified presidential records in violation of the express terms of Executive Order 13526, yet be liable for any breach of a directive implementing the Executive Order whose key access provisions their access to classified presidential records lawfully violates.
Smith alleges that the choice to retain the materials, “the decision to spirit the boxes away,”71 was made during the Presidency, when Smith’s own proposed instructions grant that the executive order did not circumscribe the President’s room for maneuver under Constitution.72 There was no higher source of “official approval or permission” at the moment the alleged decision was made than the man Smith charges with making it. Without snapback, the Special Counsel has pleaded the contrary of “possession without official approval or permission.”73
The built-in premise that a Presidential decision is invalidated by departure from office is not true of Executive Orders, which remain in force “until subsequent presidential action is taken.”74 Unlike the expiration of Congress’ two-year term, a President’s departure from office does not nullify nominations: four days after Andrew Jackson left office in March 1837, the Senate approved his last-minute nominees to Supreme Court.75
Even if Smith won on “snapback,” his theory of liability would require proving that Executive Order 13526 and its implementing directives prohibited possession or retention. While Smith is alleging violations of the Presidential Records Act, those do not figure in his theory of liability, since, in his view, “the PRA is irrelevant to the element of unauthorized possession.”76
In spite of the Special Counsel’s fixation on the § 4.4 waiver, NARA’s handbook makes clear that former Presidents “access to the materials of their administrations” is a consequence of the Presidential Records Act,77 a statutory grant that is not subject to revocation by executive order. The Special Counsel’s treatment of the charged documents as “straightforward presidential records”78 envisages that they are the very materials that “shall be available” under 44 U.S.C. § 2205(3).
What are the parameters of that availability and what are the rules for possession or retention? The facts as alleged in the Superseding Indictment leave matters in a statutory/regulatory twilight zone. There is no allegation of post-presidency larceny at the National Archives. In a normal proceeding against a former “authorized holder,”79 federal prosecutors go to town on a defendant’s undertakings and engagements in nondisclosure agreements, which not only incorporate aspects of Executive Order 13526,80 but also oblige the signer to return classified material when asked or upon leaving a post that requires access to classified information.81 The Special Counsel’s Office confirmed at oral argument that Trump never executed such an agreement.82
Executive Order 13526 does not make the rules on storage and handling of classified information, but instead assigns rule making and standard setting to the implementing directives.83 The imbroglio between the ISOO Director and the White House in 2007 demonstrates that, during the Bush era, the Office of the Vice President was relieved of the duty imposed on agencies by Executive Order 12958, as amended to follow the ISOO’s implementing directives. NARA’s Regulatory Flexibility Act certification plainly states that the directive implementing Executive Order 13526 “applies only to Federal agencies,”84 excluding former Presidents from the directive’s reach.
Trump Classified Document - Model Prosecution Memo, Andrew Weissmann, Ryan Goodman, Joyce Vance, Norman L. Eisen, et al., (Second Edition, June 2023) p. 29, n. 115: “The appellate courts have given little attention to the meaning of “lawful possession” (under § 793(d)) and “unauthorized possession” (under § 793(e)).”
Transcript of Interview with David Aaron, An Update on the Trump Classified Documents Case, The Just Security Podcast, 8/10/23: “But there really hasn't been a case that I'm aware of where the exact meaning of this, or the exact limits of failure to return it, or failure to deliver it, have been explored. I don't know of anyone ever having been charged after returning a document based on the period of time between their taking it and their returning it.”
Superseding Indictment ¶ 93, United States v. Trump, et al., No. 23-cr-80101 (S.D. Fla. July 27, 2023)
Government’s Opposition To Donald J. Trump’s Motion To Dismiss The Indictment Based On The Presidential Records Act, 3/7/24: p. 19: “Judicial review of the records’ status here, based on Trump’s eleventh-hour actions at the end of his presidency, affects no ongoing activities in the White House.”
Reply Brief In Further Support Of Motion To Dismiss Counts 1 – 32 Based On Presidential Immunity, 3/24/24, pp. 2-3: “In two court filings in this case, the Office has conceded that these alleged decisions occurred during President Trump’s first term. ECF No. 277 at 3 (arguing that the “genesis” of this case dates back to “the tail end of the Trump Administration itself”); ECF No. 373 at 19 (seeking “[j]udicial review of the records’ status here, based on Trump’s eleventh-hour actions at the end of his presidency”).
When President Trump allegedly made the retention decision, as President, he did so with the authority to designate records as “personal” pursuant to the Presidential Records Act, 44 U.S.C. § 2203(b), and with the ability to declassify records pursuant to Article II of the Constitution and §§ 1.3(1) and 3.1(b)(1) of Executive Order 13526.”
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. When those duties ended, so too did Trump’s authorization to possess the documents.”
The Espionage Act and the Presidential Records Act, Bill Shipley, 6/16/23: “How does the Smith SCO criminalize this “authorized” possession? With a naked little sentence at the end of Paragraph 4 on page 2 that he is going to have to establish to be true by virtue of some magic wand that is waived [sic] at precisely Noon on January 20…”
Government’s Response To Order Requiring Preliminary Proposed Jury Instructions And Verdict Forms On Counts 1-32, United States v. Trump, et al., No. 23-cr-80101 (S.D. Fla. April 2, 2024), p. 3:
“The proposed instruction correctly instructs the jury that the element of unauthorized possession depends on the plain language of the statute, Executive Order 13526, and the executive order’s implementing regulations, and it makes no mention of purported designations under the PRA.”
see also Government’s Opposition To Donald J. Trump’s Motion To Dismiss The Indictment Based On The Presidential Records Act, 3/7/24, p. 4: “Proof of unauthorized possession under Section 793(e) does not turn on the purported characterization of records as “personal,” but on an executive order governing who may possess classified information and under what circumstances. Under that order, Trump’s possession was unauthorized, and nothing in the PRA changes that result.”
Government’s Opposition To Donald J. Trump’s Motion To Dismiss The Indictment Based On The Presidential Records Act, 3/7/24, p. 10 [bolding added]: “The PRA says nothing about the legal requirements that attach to classified information or who is authorized to possess classified information after a President’s term ends. Whatever authorization a former President may have to possess his personal records, that authority does not override the legal requirements that attach to classified information.”
“Personal records, which are documents “of a purely private or nonpublic character which do not relate to or have an effect upon” presidential duties, id. § 2201(3), are not the United States’ property. But classified information within personal records is still subject to EO 13526’s requirements, including restrictions on safekeeping and disclosure.”
Hur Report at 193: “In contrast, "[p]ersonal records" remain the property of the former officeholder.”
Government’s Opposition To Donald J. Trump’s Motion To Dismiss The Indictment Based On The Presidential Records Act, 3/7/24, p. 11 n.3 [citing Hur Report at 181-2]: “The Hur Report reached the same conclusion: “We therefore decline to adopt the argument that compliance with the [PRA] authorizes former presidents and vice presidents to retain national defense information in unsecured and unapproved locations.””
Hur Report at 181-2: “The executive order's restrictions on access to classified information also appear to apply to former presidents and vice presidents. We therefore decline to adopt the argument that compliance with the Presidential Records Act authorizes former presidents and vice presidents to retain national defense information in unsecured and unapproved locations.”
Government’s Response To Order Requiring Preliminary Proposed Jury Instructions And Verdict Forms On Counts 1-32 at 13, United States v. Trump, et al., No. 23-cr-80101 (S.D. Fla. April 2, 2024): “The Government’s proposed jury instruction presented first below reflects the premise that the PRA is irrelevant to the element of unauthorized possession.”
Transcript Of Motions To Dismiss at 43, 45 (see also at 68) United States v. Trump, et al., No. 23-cr-80101 (S.D. Fla. March 14, 2024):
“It is our position -- and I think actually if you look at the PRA, the PRA reinforces the notice to the former president that what he was doing is illegal.
The clarity of the definitions in the PRA of what is personal and what is presidential, they undermine the claim he is making that he was not on notice, that he could keep these documents.” (p. 43)
“Yes. And the way I'm trying to root it, Your Honor, and probably maybe not as well as I could, is that on the whole issue of fair notice, that you have to look at everything that is alleged in the indictment, everything that is on the books and the law, and that the PRA, rather than undermine -- or supporting his claim, that he could take these documents without any consequences, actually reinforces the notice to him that he could not do so.” (p. 45)
“And, if anything, the PRA puts them on greater notice that what he was doing was not lawful.” (p. 68)
Transcript Of Motions To Dismiss at 125, United States v. Trump, et al., No. 23-cr-80101 (S.D. Fla. March 14, 2024) [emphasis added]:
THE COURT: But what if it's not even in the form of willfulness? It's just as a matter of law, these things are personal according to our designation and, therefore, not unauthorized, then what is your position on that?
MR. HARBACH: Okay. That implicates the second part of the argument, or the second of the three points I was mentioning earlier, which is even if they are personal, does that have anything to do with whether they are authorized under 793? And we say no.
Government’s Response To Order Requiring Preliminary Proposed Jury Instructions And Verdict Forms On Counts 1-32 at 15, 18, 20, United States v. Trump, et al., No. 23-cr-80101 (S.D. Fla. April 2, 2024)
Executive Order 13526, § 6.1(dd): “‘‘Need-to-know’’ means a determination within the executive branch in accordance with directives issued pursuant to this order that a prospective recipient requires access to specific classified information in order to perform or assist in a lawful and authorized governmental function.”
Executive Order 13526, § 4.4
Opinion of the Court at 18, Trump v. United States, No. 22-13005 (September 21, 2022)
Government’s Opposition To Donald J. Trump’s Motion To Dismiss Counts 1-32 Based On Unconstitutional Vagueness, 3/7/24, at 9 [citing Opinion of the Court at 18, Trump v. United States, No. 22-13005 (September 21, 2022): “For this reason, a person may have access to classified information only if, among other requirements, he “has a need-to-know the information.” Id. § 4.1(a)(3). This requirement pertains equally to former Presidents, unless the current administration, in its discretion, chooses to waive that requirement. Id. § 4.4(3).”]
Government’s Response To Order Requiring Preliminary Proposed Jury Instructions And Verdict Forms On Counts 1-32 at 13, United States v. Trump, et al., No. 23-cr-80101 (S.D. Fla. April 2, 2024)
Government’s Response To Order Requiring Preliminary Proposed Jury Instructions And Verdict Forms On Counts 1-32 at 15-16, United States v. Trump, et al., No. 23-cr-80101 (S.D. Fla. April 2, 2024)
The defense argues that, “[t]he provision of the National Security Act cited by the Special Counsel’s Office, 50 U.S.C. § 3161(a), does not authorize regulations binding Presidents or private parties. See 50 U.S.C. § 3163.” (Reply Brief In Further Support Of Motion To Dismiss Counts 1–32 Based On Unconstitutional Vagueness, 3/13/24, pp. 3-4)
50 U.S.C. § 3161(a) requires that, unless the President makes an exception, “no employee in the executive branch of Government may be given access to classified information by any” executive branch entity before passing “an appropriate background investigation.” Section 801(a) of the Intelligence Authorization Act for Fiscal Year 1995 enacted this provision, which was implemented by Executive Order 12968.
The bill passed by the House, H.R. 4299, would have provided that “no person shall be given access to classified information” without allowing access to financial records and would have applied to “an employee of the legislative branch or the judicial branch.” (H.R. 4299, Section 803 (p. 41 of pdf))
The bill excused “[t]he President and Vice President, Members of the Congress…, Justices of the Supreme Court, and Federal judges appointed by the President” from this obligation. (H.R. 4299, § 801 (pp. 40-1 of pdf))
Among other changes, the Senate amendment substituted the phrase (“no employee in the executive branch of Government may be given access to classified information”) that became law. (H.R. 4299 Amendment, § 801 (p. 21 of pdf))
This more restrictive language (“no employee in the executive branch”) made the exemption from background investigations outlined at 50 U.S.C. § 3163 surplus to requirements for senators, representative, and judges.
Government’s Response To Order Requiring Preliminary Proposed Jury Instructions And Verdict Forms On Counts 1-32 at 15, n.12-16, United States v. Trump, et al., No. 23-cr-80101 (S.D. Fla. April 2, 2024)
Government’s Response To Order Requiring Preliminary Proposed Jury Instructions And Verdict Forms On Counts 1-32 at 16, n.17, United States v. Trump, et al., No. 23-cr-80101 (S.D. Fla. April 2, 2024)
Defendants’ Motion To Dismiss The Indictment, docketed 2/28/24, p. 7
Transcript Of Motions To Dismiss at 56, United States v. Trump, et al., No. 23-cr-80101 (S.D. Fla. March 14, 2024)
Executive Order 12958, § 4.5
Defendants’ Reply In Support Of Their Cross-Motion For Summary Judgment at 8, Solomon v. Garland, et al., 10/5/23
Hur Report, p. 251, n. 958: “There are significant similarities between Petraeus's case and Mr. Biden's, but the differences are more significant. First, Petraeus's retention of notebooks violated numerous nondisclosure agreements he signed as an employee of the Department of Defense. By contrast, by virtue of his unique constitutional role as vice president, Mr. Biden signed no such nondisclosure agreements or attestations.”
Hur Report, pp. 77-8: “During both visits, Archives staff made clear to Mr. Biden that, by viewing the notecards in the Archives SCIF, he was accessing classified information.”
Government’s Response To Order Requiring Preliminary Proposed Jury Instructions And Verdict Forms On Counts 1-32 at 3, United States v. Trump, et al., No. 23-cr-80101 (S.D. Fla. April 2, 2024):
“The proposed instruction correctly instructs the jury that the element of unauthorized possession depends on the plain language of the statute, Executive Order 13526, and the executive order’s implementing regulations, and it makes no mention of purported designations under the PRA.”
Transcript Of Motions To Dismiss at 69, United States v. Trump, et al., No. 23-cr-80101 (S.D. Fla. March 14, 2024):
THE COURT: Okay.
All right. Now, just to be clear, there is no NDA that was signed, of course, by a former president, so you wouldn't have that sort of fact in a case?
MR. BRATT: That's correct.
Classified Information Security Program Handbook, Supplement to NARA 202 (“NARA 202-H1”), ¶ 3.7(a) and (b), p. 25 (p. 51 pdf)
NARA 202-H1, ¶ 3.7(c), p. 25 (p. 51 pdf)
NARA 202-H1, p. 1 (p. 27 pdf)
NARA 202-H1, ¶ 3.1(a)(1) and (4), p. 20 (p. 46 of pdf)
NARA 273.1(a), 12/20/16
NARA 273.1(a)(1), 12/20/16: “This rule applies to all individuals who require access to classified information, including NARA employees, contractors, retired employees, and volunteers; employees, contractors, and volunteers of other Federal agencies; applicants for Federal employment; and former Presidential administration personnel.”
NARA 202-H1, ¶ 3.3, p. 21 (p. 47 of pdf)
NARA 202-H1, ¶ 3.3(a)(2) and (b), pp. 21-2 (pp. 47-8 of pdf); NARA 273, S1, ¶ 11(d), 12/20/16, p. 5: “Visits by researchers and other cleared individuals from outside NARA. BX handles, in accordance with procedures in paragraph 3.3 of NARA 202-H1,Classified Information Security Handbook, verification of security clearances for researchers and other cleared individuals from outside NARA who require access to classified information within NARA’s control.”
Hur Report, n. 958, p. 251
Hur Report, pp. 77-9
Hur Report, p. 78
NARA 202-H1 2/23/15, ¶ 3.1(b), p. 20 (p. 46 of pdf): “Whenever reviewing classified information in a research room, all individuals must read and sign NA Form 14128, Notice to Users of NARA Classified Research Rooms, before being given access to the information.”
NARA 202-H1 2/23/15, ¶ 3.14, pp. 38-9 (pp. 64-5 of pdf)
Government’s Response To Order Requiring Preliminary Proposed Jury Instructions And Verdict Forms On Counts 1-32 at 5, United States v. Trump, et al., No. 23-cr-80101 (S.D. Fla. April 2, 2024): “To the contrary, the classified documents charged in the Superseding Indictment were all “created or received by 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,” id. § 2201(2), making them straightforward presidential records.”
Executive Order 13526: § 2.1(a): “Persons who reproduce, extract, or summarize classified information, or who apply classification markings derived from source material or as directed by a classification guide, need not possess original classification authority”; § 3.2(b): “...each agency in possession of such records shall be deemed...”, “Such records may be declassified or downgraded by the agency in possession of the records...”; § 6.1(b): “...and any other entity within the executive branch that comes into the possession of classified information.”
Executive Order 13526, § 4.1(g): “Consistent with law, executive orders, directives, and regulations, each agency head or senior agency official, or with respect to the Intelligence Community, the Director of National Intelligence, shall establish controls to ensure that classified information is used, processed, stored, reproduced, transmitted, and destroyed under conditions that provide adequate protection and prevent access by unauthorized persons.”
Government’s Response To Order Requiring Preliminary Proposed Jury Instructions And Verdict Forms On Counts 1-32 at 16, n.17, United States v. Trump, et al., No. 23-cr-80101 (S.D. Fla. April 2, 2024)
Government’s Response To Order Requiring Preliminary Proposed Jury Instructions And Verdict Forms On Counts 1-32 at 16, n.17, United States v. Trump, et al., No. 23-cr-80101 (S.D. Fla. April 2, 2024)
Executive Order 13526, § 5.1(b): “The Archivist shall delegate the implementation and monitoring functions of this program to the Director of the Information Security Oversight Office.”
Executive Order 13526, § 5.1(a)
Executive Order 13526, § 5.1(a)(2)
Executive Order 13526, § 6.1(b)
Public Citizen, Inc. v. Department of Justice and National Archives and Records Administration, 111 F.3d 168, 170 (D.C. Cir. 1997)“While Public Citizen is doubtless right that a former President is not an agency under FOIA, see id. Section(s) 551(1), 552(f), records of communications between an agency and outside consultants qualify as "intra-agency" for purposes of Exemption 5 if they have been "created for the purpose of aiding the agency's deliberative process." Dow Jones Co., Inc. v. Department of Justice, 917 F.2d 571, 575 (D.C. Cir. 1990) (emphasis in original); CNA Financial Corp. v. Donovan, 830 F.2d 1132, 1161 (D.C. Cir. 1987).”
OLC Letter to ISOO Director, 7/20/07, p. 2 of pdf
Executive Order 12958 as amended, § 6.1(b), 3/25/03
Comparative version of Executive Orders 13526 and 12958 as amended, Federation of American Scientists
Executive Order 13526, § 5.1(a)
32 CFR Parts 2001 and 2003, 75 FR 37254 (June 28, 2010)
Government’s Response To Order Requiring Preliminary Proposed Jury Instructions And Verdict Forms On Counts 1-32 at 15, 18, 20, United States v. Trump, et al., No. 23-cr-80101 (S.D. Fla. April 2, 2024) [emphasis added]: “The United States government has adopted rules that govern the possession of classified information. Those rules do not apply to a sitting President but apply to former Presidents after their term in office has ended.”
Government’s Response To Order Requiring Preliminary Proposed Jury Instructions And Verdict Forms On Counts 1-32 at 15, 18, 20, United States v. Trump, et al., No. 23-cr-80101 (S.D. Fla. April 2, 2024)
Legal Effectiveness of a Presidential Directive, as Compared to an Executive Order, 1/29/00, published in Opinions of the Office of Legal Counsel in Volume 24, pp. 29-30 (p. 1 of pdf): “A presidential directive has the same substantive legal effect as an executive order. It is the substance of the presidential action that is determinative, not the form of the document conveying that action.
Both an executive order and a presidential directive remain effective upon a change in administration, unless otherwise specified in the document, and both continue to be effective until subsequent presidential action is taken.”
Government’s Response To Order Requiring Preliminary Proposed Jury Instructions And Verdict Forms On Counts 1-32 at 13, United States v. Trump, et al., No. 23-cr-80101 (S.D. Fla. April 2, 2024): “The Government’s proposed jury instruction presented first below reflects the premise that the PRA is irrelevant to the element of unauthorized possession.”
NARA 202-H1, ¶ 3.7(b), p. 25 (p. 51 pdf): “Research. Former Presidents, Vice Presidents or their designated representatives will have access to the materials of their administrations for research or reference purposes in accordance with 44 U.S.C. 2204, subject to 44 U.S.C. 2204(f) and subpar. 3.9d for access by non-government researchers performing PRA production reviews or historical research, as appropriate.”
Government’s Response To Order Requiring Preliminary Proposed Jury Instructions And Verdict Forms On Counts 1-32 at 5, United States v. Trump, et al., No. 23-cr-80101 (S.D. Fla. April 2, 2024)
Executive Order 13526, § 6.1(c): “‘‘Authorized holder’’ of classified information means anyone who satisfies the conditions for access stated in section 4.1(a) of this order.”
Standard Form 312, ¶ 11 Form 4414, ¶ 14: “The definitions, requirements, obligations, rights, sanctions, and liabilities created by said Executive Order and listed statutes are incorporated into this agreement and are controlling.”
Standard Form 312, ¶ 7; Form 4414, ¶ 8
Transcript Of Motions To Dismiss at 69, United States v. Trump, et al., No. 23-cr-80101 (S.D. Fla. March 14, 2024):
THE COURT: Okay.
All right. Now, just to be clear, there is no NDA that was signed, of course, by a former president, so you wouldn't have that sort of fact in a case?
MR. BRATT: That's correct.
Executive Order 13526, § 5.1(a)
32 CFR Parts 2001 and 2003, 75 FR 37254 (June 28, 2010)