#Trump’s legal defenses draw derision — even from some conservatives

Former President Trump and his allies have been throwing up defenses over the Mar-a-Lago documents since an indictment leveling 37 criminal charges against him was unsealed June 9.

Trump is charged with conspiracy to obstruct justice, several offenses related to concealment, and 31 counts of willful retention of national defense information. He pled not guilty to all charges at his Tuesday arraignment in Miami. 

Trump’s counterblasts have often been rooted more in politics rather than law — and they have included straightforward attempts to discredit the investigation.

Trump has called special counsel Jack Smith “deranged” and a “thug,” and he and his supporters have claimed there are double standards at play, given that President Biden and former Vice President Mike Pence were also discovered to have documents marked as classified in their possession.

There are, however, important differences in those cases — notably, Biden and Pence immediately turned over the records upon discovering them, while Trump sought to retain his over a long period — and, eventually, in the face of a subpoena.

Trump’s conduct has even been sternly criticized by some conservative legal figures.

One, former federal judge Michael Luttig, tweeted on the day of Trump’s arraignment, “There is not an Attorney General of either party who would not have brought today’s charges against the former president.”

Here are some of Trump’s purported defenses — all of which draw deep skepticism from many experts.

Does the Presidential Records Act mean it’s OK for Trump to have had the documents?

“As President, the law that applies to this case is not the Espionage Act but very simply the Presidential Records Act. … Under the Presidential Records Act, I had every right to have these documents” — Former President Trump, speaking at Bedminster, N.J., on the evening of his arraignment, June 13, 2023

Trump’s argument here appears to be that he could declare almost anything he liked as personal material, putting it beyond the reach of the National Archives and Records Administration (NARA) and the rest of the government.

Almost no one outside of Trump’s circle believes this to be true, at least in the way Trump frames it.

The Presidential Records Act (PRA) states plainly that “the United States shall reserve and retain complete ownership, possession, and control of Presidential records.”

It further distinguishes between presidential records and personal records, putting into the latter category only materials “of a purely private or nonpublic character which do not relate to or have an effect upon the carrying out of the … duties of the President.” Examples in this category include personal diaries or journals.

It is implausible on its face to suggest the kinds of materials Trump is accused of having — intelligence briefings, documents concerning the military capabilities of foreign nations and “military contingency planning of the United States” — could fall under the law’s definition of personal records.

“It seems clear to everyone — besides Trump’s lawyers, diehard supporters and those who have never read the act — that the Presidential Records Act does not allow what Trump did,” said Mark Zaid, an attorney who regularly handles national security issues and has represented clients across the political spectrum.

The items in Trump’s possession, Zaid added, “are clearly presidential records, not personal documents.”

There is one potential — though debatable — loophole, however.

The PRA notes, somewhat confusingly, that its definition of presidential records “does not include…official records of an agency.”

Sol Wisenberg, a white-collar criminal defense attorney and the former deputy independent counsel in the Whitewater/Lewinsky investigation, said Trump’s team could argue the documents in question are agency records rather than presidential records.

This is one of the reasons Wisenberg argues the case against Trump is “not a slam dunk at all.”

Does the ‘Clinton Socks’ case provide a beneficial precedent for Trump?

“The crucial legal precedent is laid out in the most important case ever on this subject, known as the ‘Clinton Socks case.’ … After leaving the White House, Bill Clinton kept 79 audio tapes in his sock drawer. … Not only was Bill Clinton never even considered for criminal prosecution based on the tapes he took, but when he was sued for them, he won the case.” — Trump, Bedminster, June 13

Trump’s account is a misleading retelling of what happened in the Clinton case — and one that exaggerates its relevance to his legal troubles.

In summary, former President Clinton gave interviews while in office to historian Taylor Branch for a later oral history of his presidency. The tapes were never defined as presidential records, so NARA never sought to take possession of them — exactly the opposite of the facts in Trump’s case.

In Clinton’s case, a right-leaning advocacy group, Judicial Watch, sued. In essence, Judicial Watch was seeking to force NARA’s hand, making the agency redefine the Clinton tapes as presidential records and ultimately make them public.

There was one part of the story Trump got unambiguously right: Judicial Watch lost the case.

In the Clinton case, “The United States government had made a decision not to pursue those tapes and a private organization was trying to force the government to take those records back,” said Renato Mariotti, a trial attorney and former federal prosecutor who ran in the Democratic primary several years ago to become attorney general of Illinois.

By contrast, Mariotti added, “The United States has made abundantly clear to Trump that it believes it owned these records and they needed them back. That is a very different situation.”

Did Trump have unconditional classification authority as president?

“There doesn’t have to be a process, as I understand it. You’re the president of the United States. You can declassify just by saying it’s declassified, even by thinking about it.” — Trump, interview with Sean Hannity, September 2022

In fairness to Trump, a sitting president has wide declassification powers, not all of which are delineated with clarity.

There are three significant problems, however.

Firstly, the idea the president can declassify documents with his mind, telling no one about it, is derided by most legal experts.

Secondly, no evidence has yet been produced to support the claim Trump declassified the specific documents in question. Nor has there been any evidence he had any standard declassification procedure in effect while in the White House that would have somehow declassified material in bulk.

Thirdly, and perhaps most importantly, the indictment includes details of a recorded conversation Trump allegedly had in July 2021 at Bedminster with a writer, a publisher and two aides. During that conversation, Trump is alleged to have shown a “plan of attack” that had been prepared for him by the Pentagon.

According to the indictment, Trump said the plan was “highly confidential” and added, “As president, I could have declassified it.”

He allegedly continued, “Now I can’t, you know, but this is still a secret.”

Such statements are, on their face, inconsistent with the idea Trump believed all material he took with him after his presidency ended was declassified.

If that conversation happened as prosecutors allege, “He obviously is aware that a document he took from the White House is not declassified,” said Harry Litman, a former deputy attorney general. 

“If he had this magic power that swept over all the documents, that would not have been the case.”