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(Photo by Drew Angerer/Getty Images)
Last night, Donald Trump dropped four motions to dismiss the Florida documents case on the public docket, plus at least three more under seal. Every Trump pleading is batshit in its own guanolicious way, but the motions based on presidential immunity and the Presidential Records Act (PRA) are especially egregious. Most saliently, Trump’s lawyers yaddayaddyadda over exactly how those documents stashed in the shower at Mar-a-Lago actually made the transition from presidential to personal records.
It’s like Joseph Smith’s golden plates. A MAGA just believes!
“President Trump’s alleged decision to designate records as personal under the PRA and cause them to be removed from the White House—which underlies Counts 1 through 32 of the Superseding Indictment—was an official act by the incumbent president,” they insist in the immunity motion, without ever actually saying that their client did designate the records as personal.
“President Trump’s decision to designate records as personal and cause them to be removed from the White House plainly constitutes an official act within the ‘outer perimeter’ of the president’s official duties,” they argue in PRA motion, adding that “The PRA also ‘precludes judicial review of the President’s recordkeeping practices and decisions,’ including President Trump’s decision to designate materials as Personal Records.”
Both pleadings work from the premise that Trump somehow transformed dozens of top secret and classified documents into personal records before stuffing them in his luggage and stomping off to Florida. But there’s no reference to exactly when or how such a transubstantiation occurred. In fact, Trump’s lawyers give that whole process a very wide berth, suggesting that “The Court should hold a hearing to resolve any factual disputes relating to the official nature of President Trump’s PRA designation and the removal of his personal records from the White House.”
Or maybe instead of a hearing to resolve disputes of fact, Judge Aileen Cannon might want to hold … a trial?
There are about a million reasons why Trump’s lawyers would want to steer clear of specifics about the “personal” journey of those official documents, chief among them being their client and his allies have said some extremely crazy shit on this topic.
At a CNN Town Hall in May, he told reporter Kaitlan Collins that any previously classified materials “became automatically declassified when I took them,” even insisting that he “would have the right to” show them to anyone he liked. His minion Kash Patel even claimed to have been present when Trump laid hands on the documents and rendered them personal property. Maybe by Reiki, although Patel pled the Fifth when subpoenaed about his claims, and only testified under a grant of immunity by Judge Beryl Howell in DC.
Trump’s lawyers also cite to Judicial Watch, Inc. v. NARA, 845 F. Supp. 2d 288 (D.D.C. 2012), AKA “The Socks Case,” AKA “The Clinton Socks Case,” AKA “The Sock Drawer Case,” AKA “That Ruling That Trump’s Been Yelling About For Two Years Because Tom Fitton Said It Mattered.” In Socks, Judge Amy Berman Jackson said the PRA didn’t give her the authority to order the National Archives (NARA) to seize tapes made by Bill Clinton for his biographer Taylor Branch. Tom Fitton, the spandex-shirted head of Judicial Watch, convinced Trump that Socks means no court can ever question a president’s designation of a record as personal.
By this logic, Trump was entitled to pocket the entire national security archive and sell it to Putin, a maximalist claim which is functionally equivalent to the “SEAL Team 6” argument Trump’s lawyers made to the DC Circuit. There, Judge Florence Pan got attorney John Sauer to admit that, yes, he was actually claiming that the president could have his political opponent assassinated and escape prosecution if he wasn’t impeached by the House and convicted by the Senate. These arguments reductio themselves ad absurdum, but that hasn’t stopped Trump from making them.
And while they’re saying absolutely ridiculous things, Trump’s lawyer suggest that Judge Cannon is bound by Judge Jackson’s 2012 District Court ruling in Socks, but not by the DC Circuit’s rejection of Trump’s immunity claims.
“President Trump is pursuing further review of that erroneous decision, including en banc review if allowed, and review in the U.S. Supreme Court if necessary,” they sniff. “This Court should not follow the D.C. Circuit’s non-binding, poorly reasoned decision.”
Note that they are not asking her to wait for the Supreme Court to weigh in, but rather to accept Trump’s immunity claims — undergirded by nebulous claims of declassifying documents by telekinesis — and dismiss the case immediately.
It’s a bold strategy, Cotton! And, as journalist Marcie Wheeler points out in her excellent fisking of these motions, Trump’s attorneys have now explicitly admitted that their client took those documents on purpose, making it that much easier to prove that he intentionally and willfully swiped that stuff and refused to give it back.
And while we’re on the subject, Trump is charged with violating the Espionage Act and obstructing justice — not violating the PRA. But this case is before Judge Aileen Cannon, so YMMV.
US v. Trump [SDFL Docket via Court Listener]
Judicial Watch v. National Archives [Docket via Court Listener]
Liz Dye lives in Baltimore where she produces the Law and Chaos substack and podcast.
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