'Wholly without merit': Jack Smith blasts Trump’s 'personal' records argument in latest filing

07 March 2024

As Donald Trump and Department of Justice special counsel Jack Smith await a trial start date for the former president's case regarding his mishandling of classified documents, Smith submitted a filing to the court Thursday "in response to Trump's claim that he was entitled to declare the classified docs he took home with him as 'personal' records," Politico's Kyle Cheney reports.

In his filing, Smith argues that "Trump’s reliance on the PRA [Presidential Records Act] as a basis for dismissing the indictment is wrong. The PRA does not exempt Trump from the criminal law, entitle him to unilaterally declare highly classified presidential records to be personal records, or shield him from criminal investigations—let alone allow him to obstruct a federal investigation with impunity."

Smith writes, "Trump alludes to DOJ’s inaction over former President Reagan’s diaries, which he retained after leaving office and which contained classified information. But DOJ’s decisions decades ago with respect to a former President’s diaries establish no legal precedent for the interaction of the PRA and Executive Orders governing classified documents. This case involves classified records created by intelligence and military officials for highly sensitive Presidential briefings. Trump did not create them, they do not reflect his personal thoughts, they came into his possession only through his official duties, and (except for one charged document) bear classification markings. They have no resemblance to diaries."

In June 2023, New York Times reporter Linda Qiu fact-checked the former president's "misleading defenses" related to the classified documents case including his claim: "Threatening me with 400 years in prison for possessing my own presidential papers, which just about every other president has done, is one of the most outrageous and vicious legal theories ever put forward in an American court of law."

Qiu writes, "False. The Presidential Records Act of 1978 governs the preservation and retention of official records of former presidents, and gives the National Archives and Records Administration complete ownership and control of presidential records. The law makes a distinction between official records and personal documents, and has applied to every president since Ronald Reagan."

Via X (formerly Twitter), Cheney emphasizes Smith's latest filing is "a remarkable document in which Smith compares Trump's actions to a long list of high-profile people accused of mishandling classified info," including former ex-Vice President Mike Pence, ex-President Bill Clinton, former Secretary of State Hillary Clinton, and ex-FBI Director James Comey. Cheney adds, "In a nutshell, none of them were as brazenly obstructive as Trump," Smith argues.

Furthermore, the Politico reporter notes in the filing that "Smith also thrashes Trump's attempt to assert presidential immunity for is Florida indictment as 'so wholly without merit that it is difficult to understand it except as part of a strategic effort for delay.'"

Last week, the US Supreme Court agreed to hear Trump's argument that he has absolute immunity from federal prosecution next month, which could further delay the classified documents trial. Smith requested July 8 for the trial start date, while Trump requested either after the November election or August 12 at the earliest.

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