USA v. Trump, et al. Document 373: Response In Opposition

Florida Southern District Court
Case No. 9:23-cr-80101-AMC
Filed March 7, 2024

RESPONSE in Opposition by USA as to Donald J. Trump re [327] MOTION to Dismiss [85] Indictment, Based on the Presidential Records Act Replies due by 3/14/2024. (Bratt, Jay)

BackBack to USA v. Trump, et al.

Tags No tags have been applied so far. Sign in to add some.

  Formatted Text Tab Overlap Raw Text Right End
Page 1 Case 9:23-cr-80101-AMC Document 373 Entered on FLSD Docket 03/07/2024 Page 1 of
UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF FLORIDA
WEST PALM BEACH DIVISION
CASE NO. 23-80101-CR-CANNON(s)
UNITED STATES OF AMERICA,
Plaintiff,
v.
DONALD J. TRUMP,
WALTINE NAUTA, and
CARLOS DE OLIVEIRA,
Defendants.
________________________________/
GOVERNMENT’S OPPOSITION TO DONALD J. TRUMP’S
MOTION TO DISMISS THE INDICTMENT BASED ON
THE PRESIDENTIAL RECORDS ACT
Page 2 Case 9:23-cr-80101-AMC Document 373 Entered on FLSD Docket 03/07/2024 Page 2 of
TABLE OF CONTENTS
BACKGROUND ........................................................................................................................
ARGUMENT ........................................................................................................................
I.
Section 793(e) Applies Regardless of Whether the Records He Possessed Were
“Personal” Under the PRA.................................................................................................. A.
Section 793(e)’s Prohibition of Unauthorized Possession in This Prosecution
Takes Its Meaning from the Relevant Executive Order ................................................
B.
The PRA Does Not Authorize the Possession of Classified Information .....................
II.
A Presidential Designation of Records as “Personal” Is Not Binding .............................. A.
A President Cannot Unilaterally Transform Presidential Records into Personal
Records by Removing Them from the White House ..................................................
B.
Any Implied Designation of Records as “Personal” by a President Who Takes
Them upon Leaving Office Is Not Immune from Judicial Review ............................
III.
The Investigation into Trump’s Unauthorized Retention of Classified Records
Was Valid and Trump’s Contrary View Provides No Defense to Charges that
He Obstructed the Investigation........................................................................................ A.
NARA’s Remedies Do Not Preempt Criminal Statutes or Investigative
Authorities.............................................................................................................

B.
Trump Had No Right to Lie and Obstruct the FBI’s Investigation .............................
CONCLUSION ........................................................................................................................

i
Page 3 Case 9:23-cr-80101-AMC Document 373 Entered on FLSD Docket 03/07/2024 Page 3 of
Defendant Donald J. Trump moves to dismiss the Superseding Indictment based on the
Presidential Records Act, 4 U.S.C. § 2201, et seq. (“PRA”). ECF No. 327. Trump’s claims rest
on three fundamental errors, all of which reflect his view that, as a former President, the Nation’s
laws and principles of accountability that govern every other citizen do not apply to him.
First, the PRA does not affect the scope of 18 U.S.C. § 793(e), the statute that underlies
Counts 1 through 32 of the Superseding Indictment. Section 793(e) prohibits the unauthorized
possession and willful retention of national defense information. Even if the raft of highly
classified documents that Trump took from the White House to Mar-a-Lago were somehow
categorized as “personal” under the PRA, that would not render his retention of those documents
“authorized” for purposes of Section 793(e). The authorization for a former President to possess
classified information comes from the applicable executive order—not from the PRA—and Trump
was not authorized to possess classified records at all (let alone at unsecured locations at Mar-aLago, as the Superseding Indictment alleges, see ECF No. 85 ¶¶ 4-5).
Second, the charged documents are indisputably presidential, not personal, and Trump
offers no basis to conclude otherwise. Instead, he contends that because he transferred the
documents to Mar-a-Lago, rather than to the National Archives Records Administration
(“NARA”), the Court must conclusively presume that he designated the documents as personal—
despite contrary allegations in the Superseding Indictment, the presidential nature of the records,
and his own public statements saying the opposite. He further contends that an implied (and
counterfactual) decision to treat the records as personal lies beyond the scope of judicial review.
That is wrong. Nothing in the PRA leaves it to a President to make unilateral, unreviewable, and
perpetually binding decisions to remove presidential records from the White House in a manner
that thwarts the operation of the PRA—a statute designed to ensure that presidential records are
1
Page 4 Case 9:23-cr-80101-AMC Document 373 Entered on FLSD Docket 03/07/2024 Page 4 of
the property of the United States and that they are preserved for the people. Although it is not
necessary to resolve that issue for the Government to prove the charges under Section 793(e)—
because categorizing a classified document as “personal” does not make retention of the document
“authorized” under Section 793(e)—if it were necessary, determining that the documents at issue
are presidential, not personal, is obvious and well within judicial competence.
Third, Trump is wrong to assert that the PRA’s civil remedy for recovering presidential
records preempts the Justice Department’s authority to investigate and enforce criminal law.
Congress enacted Section 793(e) to allow criminal prosecution of persons who jeopardize national
security by improperly retaining the government’s closely held defense secrets. The civil remedy
to recover records serves an entirely different purpose: to vindicate Congress’s determination that
the United States owns presidential records. 44 U.S.C. § 2202. The two statutory schemes are
complementary and compatible; neither forecloses resort to the other. The Government therefore
had valid legal authority to conduct a criminal investigation involving the charged documents.
And Trump’s disagreement provides no defense to the obstruction-of-justice charges in Counts 3336, 40, and 41, the scheme-to-conceal charges in Count 37, and the false-statement charges in
Count 38. The law provides many means to challenge the Government’s right to investigate.
“Lying [to investigators] is not one of them.” Bryson v. United States, 396 U.S. 64, 72 (1969).
BACKGROUND
On July 27, 2023, a grand jury in this district returned a Superseding Indictment charging
Trump with 32 counts of willful retention of national defense information, in violation of 18 U.S.C.
§ 793(e), and eight counts under various provisions addressing obstruction of justice and
concealment of records. ECF No. 85. The Superseding Indictment alleges that, as part of his
official duties as President, Trump received intelligence briefings from senior members of the
2
Page 5 Case 9:23-cr-80101-AMC Document 373 Entered on FLSD Docket 03/07/2024 Page 5 of
United States Intelligence Community (“USIC”) and regularly received classified intelligence as
part of the “President’s Daily Brief.” Id. ¶ 20. On January 20, 2021, Trump ceased to be President.
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.
NARA made extensive efforts to recover the presidential records that Trump took and kept
after leaving office. Id. ¶ 38. In January 2022, Trump provided 15 boxes of materials to NARA.
Id. ¶ 49. On opening the boxes, NARA discovered that 14 of the boxes contained documents with
classification markings. Id.
Ultimately, the FBI determined that the boxes contained
documents with classification markings, including “CONFIDENTIAL,” “SECRET,” and “TOP
SECRET,” with some marked with even more restrictive indications of containing Sensitive
Compartmented Information (“SCI”) and Special Access Programs (“SAP”). Id.; see also id.
¶¶ 16-17. NARA referred the matter to the Department of Justice (“DOJ”). Id. ¶ 50.
In March and April 2022, the FBI and a grand jury opened investigations. Id. ¶¶ 51-52. In
May 2022, the grand jury subpoenaed the Office of Donald J. Trump for all documents with
classification markings in the custody or control of that office or Trump himself. Id. ¶ 53. On
June 3, 2022, attorneys working on Trump’s behalf provided an additional 38 documents bearing
classification markings as well as a certification that all boxes moved from the White House to
Mar-a-Lago had been subjected to a “diligent search” and that “[a]ny and all responsive documents
accompan[ied]” the certification. Id. ¶¶ 65-72. That was not true. On August 8, 2022, the FBI
executed a court-authorized search warrant at Mar-a-Lago and recovered an additional documents with classification markings. Id. ¶¶ 89-90.
3
Page 6 Case 9:23-cr-80101-AMC Document 373 Entered on FLSD Docket 03/07/2024 Page 6 of
In the Superseding Indictment, Counts 1-32 charge Trump with the unauthorized
possession and willful retention of documents relating to the national defense, in violation of U.S.C. § 793(e). Id. ¶ 93. The additional counts allege obstruction crimes based on conspiracy
and substantive violations of criminal law when Trump and his co-defendants used deception to
obstruct the return of the documents. See id. ¶¶ 94-119.
ARGUMENT
Trump’s reliance on the PRA 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.
In his motion, Trump contends, first, that his possession of the records underlying Counts
1 through 32 was not “unauthorized,” as required to prove a violation of 18 U.S.C. § 793(e),
because he had exercised his authority as President “to designate the records as personal when, as
alleged in the Superseding Indictment, he ‘caused’ the materials to be transported out of the White
House while he was still in office.” ECF No. 327 at 4. Second, he argues that a President’s
designation of the records as “personal” under the PRA is not subject to judicial review. Id. at 510. Third, he contends that “the PRA’s exclusive remedy for records collection efforts by NARA
is civil in nature and forecloses criminal investigation.” Id. at 3; see id. at 10-13. None of these
contentions has merit. 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. Moreover, his claim
that obviously presidential records—highly sensitive government documents bearing classification
4
Page 7 Case 9:23-cr-80101-AMC Document 373 Entered on FLSD Docket 03/07/2024 Page 7 of
markings that were presented to Trump during his term in office—can be transformed into
“personal” records by the alchemy of removing them from the White House is false. So too is his
suggestion that courts are powerless to say that presidential records are not personal records. And,
finally, the civil remedy for record recovery does not preempt criminal laws or investigative
authorities, and even if it did, it would not provide Trump a license to obstruct justice.
I.
Section 793(e) Applies Regardless of Whether the Records He Possessed Were
“Personal” Under the PRA
Section 793(e) provides that “[w]hoever having unauthorized possession of, access to, or
control over any document . . . relating to the national defense . . . willfully retains the same and
fails to deliver it to the officer or employee of the United States entitled to receive it,” is guilty of
an offense. 18 U.S.C. § 793(e) (emphasis added). While Trump contends (without any plausible
basis) that he designated the records underlying the Section 793(e) counts as “personal” under the
PRA when he caused their removal from the White House, ECF No. 327 at 4, that contention, even
if accurate, would not make his possession of classified records “authorized” under Section 793(e).
A.
Section 793(e)’s Prohibition of Unauthorized Possession in This Prosecution
Takes Its Meaning from the Relevant Executive Order
The violations of Section 793(e) alleged against Trump require proof of three elements: (1)
unauthorized possession of a document, (2) that related to the national defense, (3) by a defendant
who willfully retained the document and failed to deliver it to the employee or officer entitled to
receive it. 18 U.S.C. § 793(e). The Superseding Indictment charges Trump with Section 793(e)
violations based on his possession of classified documents. Establishing that documents were
classified does not automatically establish that the documents related to the national defense,
5
Page 8 Case 9:23-cr-80101-AMC Document 373 Entered on FLSD Docket 03/07/2024 Page 8 of
although it is relevant to that issue.1 But classification status does establish who may lawfully
possess classified documents, and under what circumstances. And, if a person is not entitled to
possess those documents, his possession is not authorized for purposes of Section 793.
Because Section 793 does not define the term “unauthorized,” the term bears its “ordinary
meaning.” Sebelius v. Cloer, 569 U.S. 369, 376 (2013) (quotation marks omitted); see Campbell
v. Universal City Dev. Partners, Ltd., 72 F. 4th 1245, 1254-55 (11th Cir. 2023). Dictionary
definitions establish that “unauthorized” means without official approval or permission. See
Black’s Law Dictionary (11th ed. 2019) (defining “unauthorized” as “[d]one without authority,”
defining “authority” as “[t]he official right or permission to act,” and defining “authorization” as
“[o]fficial permission to do something; sanction or warrant”); Random House Unabridged
Dictionary 139 (2001) (defining “authorization” as “permission or power granted by an
authority”); Webster’s Third International Dictionary 146 (2002) (defining authorization as “the
state of being authorized” and defining “authorize” as “to endorse, empower, justify, permit by or
as if by some recognized or proper authority”). That definition accords with the interpretation of
similar terms in other criminal statutes. See, e.g., United States v. Nosal, 844 F.3d 1024, 1028,
1034-35 (9th Cir. 2016) (“‘[W]ithout authorization’ [in 18 U.S.C. § 1030(a)(4)] is an unambiguous,
non-technical term that, given its plain and ordinary meaning, means accessing a protected
computer without permission”). Accordingly, for purposes of Section 793, “without authorization”
means without official permission or approval.

The concept of national defense information (“NDI”) refers to information relating to “the
military and naval establishments and the related activities of national preparedness.” Gorin v.
United States, 312 U.S. 19, 28 (1941) (quotation marks omitted). “NDI . . . is not synonymous
with ‘classified’; information that is classified by the executive branch of government may or may
not qualify as NDI.” United States v. Rosen, 599 F. Supp. 2d 690, 694 (E.D. Va. 2009).
Classification may nevertheless be relevant to proving that information qualifies as NDI. See, e.g.,
United States v. Truong Dinh Hung, 629 F.2d 908, 918 n.9 (4th Cir. 1980).
6
Page 9 Case 9:23-cr-80101-AMC Document 373 Entered on FLSD Docket 03/07/2024 Page 9 of
Permission or approval to possess classified information flows from executive orders
issued by the President. “The authority to protect [national security] information falls on the
President as head of the Executive Branch and as Commander in Chief.” Dep’t of Navy v. Egan,
484 U.S. 518, 527 (1988). As Commander in Chief, the President’s “authority to classify and
control access to information bearing on national security and to determine whether an individual
is sufficiently trustworthy to occupy a position in the Executive Branch that will give that person
access to such information flows primarily from this constitutional investment of power in the
President and exists quite apart from any explicit congressional grant.” Id. Congress has long
required that “the President shall, by Executive order or regulation, establish procedures to govern
access to classified information which shall be binding upon all departments, agencies, and offices
of the executive branch of Government.” 50 U.S.C. § 3161(a); see National Security Act (“NSA”)
of 1947, Pub. L. No. 118-31 § 801, 61 Stat. 496 (1947), as amended. Congress exempted the
President, Vice-President, and officials from the Judicial and Legislative Branches from the
provisions of the NSA, see 50 U.S.C. § 3163, but it provided no similar exemption for a former
President or any other former official.
Consistent with these constitutional and statutory authorities, Presidents have issued a
series of executive orders to govern access to and storage of classified information. See Egan, U.S. at 527-528.
The current executive order—and the one in force throughout Trump’s
Presidency and through the allegations in the Superseding Indictment—is Executive Order (“EO”)
13526, issued on December 29, 2009. See ECF No. 85 ¶ 14. Pursuant 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. EO § 4.1. And as the Eleventh Circuit has made clear,
7
Page 10 Case 9:23-cr-80101-AMC Document 373 Entered on FLSD Docket 03/07/2024 Page 10 of
the requirements of EO 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. 1, 2022). For former Presidents, the need-to-know
requirement can be waived but only if an official “determines in writing that access is consistent
with the interest of national security”; “takes appropriate steps to protect classified information
from unauthorized disclosure or compromise”; and “ensures that the information is safeguarded in
a manner consistent with this order.” EO § 4.4(a), (b)(1) & (2).
Given the Article II authority of the President and the statutory backdrop for the President’s
regulation of classified information, unauthorized possession under Section 793(e) in this case is
measured by the terms of EO 13526. That is the approach courts have followed in construing the
related phrase “not entitled to receive” NDI in the same statute.2 Under the provisions of EO
13526, the Superseding Indictment alleges, once Trump left office, he no longer had authorization
to possess classified information, he never received a waiver entitling him, as a former President,
to possess it, and he stored documents at a location that was not an authorized location for the
storage, possession, review, display, or discussion of classified documents. ECF No. 85 ¶¶ 4-6,
18-19. Accordingly, the Superseding Indictment sufficiently alleges “unauthorized possession.”

See United States v. Morison, 844 F.2d 1057, 1065-66, 1075 (4th Cir. 1988) (“[T]he words
‘entitled to receive’ in the statute in this case can be limited and clarified by the Classification
Regulations.”); see United States v. Rosen, 445 F. Supp. 2d 602, 622-23 (E.D. Va. 2006) (“[T]he
rule regulating who is ‘entitled to receive’ is the Executive Order setting forth a uniform
classification system for national security information . . . [T]he statute incorporates the executive
branch’s classification regulations.” (quoting EO 13526)); see also Truong Dinh Hung, 629 F.2d
at 919 n.10 (trial judge provided “adequate content” to “unauthorized possession” by instructing
that “a person would have authorized possession if he had appropriate security clearance and if he
gained access to the document because it was necessary to the performance of his official duties”).
8
Page 11 Case 9:23-cr-80101-AMC Document 373 Entered on FLSD Docket 03/07/2024 Page 11 of
B.
The PRA Does Not Authorize the Possession of Classified Information
The PRA does not authorize the possession of classified information by a former President;
indeed, it does not address the subject of classified information at all (other than in a provision that
is not relevant here, governing restrictions on access to certain presidential records, including those
that are properly classified, see 44 U.S.C. § 2204(a)(1)). Congress enacted the PRA “to establish
the public ownership of presidential records and ensure the preservation of presidential records for
public access after the termination of a President’s term in office.” Armstong v. Bush, 924 F.2d
282, 290 (D.C. Cir. 1991) (“Armstrong I”); see Pub. L. No. 95-591, 92 Stat. 2523 (1978). The
PRA defines “Presidential records” to mean “documentary materials, or any reasonably segregable
portion thereof, created or received by the President” or his staff “in the course of conducting
activities which relate to or have an effect upon the carrying out of the constitutional, statutory, or
official or ceremonial duties of the President.” 44 U.S.C. § 2201(2). The category of presidential
records does not include “personal records.” Id. § 2201(2)(B). “The term ‘personal records’ means
all documentary materials, or any reasonably segregable portion thereof, of a purely private or
nonpublic character which do not relate to or have an effect upon the carrying out of the
constitutional, statutory, or official or ceremonial duties of the President.” Id. § 2201(3). Under
the PRA, “[t]he United States shall reserve and retain complete ownership, possession, and control
of Presidential records.” Id. § 2202. “Documentary materials produced or received by the
President . . . shall, to the extent practicable, be categorized as Presidential records or personal
records upon their creation or receipt and filed separately.” Id. § 2203(b). At the conclusion of
9
Page 12 Case 9:23-cr-80101-AMC Document 373 Entered on FLSD Docket 03/07/2024 Page 12 of
the President’s term, “the Archivist . . . shall assume responsibility for the custody, control, and
preservation of, and access to, the Presidential records of that President.” Id. § 2203(g)(1).
The PRA thus enshrines the public’s ownership of documents that reflect the President’s
performance of his official duties. 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. And
the PRA can readily be harmonized with EO 13526: Presidential records belong the United States,
and classified documents the President receives are inherently documents “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 . . . duties of the President.” 44 U.S.C.
§ 2201(2). 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. Reconciling these provisions
allows each to operate within its appropriate sphere.
That straightforward reading of the PRA also avoids the constitutional question that would
be raised if the Court were to find that legislation has overridden the President’s determinations
about who may possess classified information. As noted, the President’s “authority to classify and
control access to information bearing on national security . . . flows primarily” from the
Commander-in-Chief Clause “and exists quite apart from any explicit congressional grant.” Egan,
484 U.S. at 527. 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
10
Page 13 Case 9:23-cr-80101-AMC Document 373 Entered on FLSD Docket 03/07/2024 Page 13 of
a significant constitutional question. See Zivotofsky v. Kerry, 576 U.S. 1 (2012) (separation of
powers may be violated by congressional intrusion on unique presidential authority). The judiciary
should strive to avoid any such conflict. See Am. Foreign Serv. Ass’n v. Garfinkel, 490 U.S. 153,
161-62 (1989) (per curiam) (remanding with instructions that lower courts address whether a
congressional statute and an executive-branch form dealing with conditions of access to classified
information “are susceptible of a reconciling interpretation” to avoid constitutional questions).
And at a minimum, any congressional intrusion on the President’s Commander-in-Chief power to
protect national-security information would require that “Congress specifically ha[d] provided
otherwise.” Egan, 484 U.S. at 530 (emphasis added). The PRA provides no specific exception
to EO 13526 that would authorize Trump to keep classified government records at Mar-a-Lago.Trump alludes to DOJ’s inaction over former President Reagan’s diaries, which he retained
after leaving office and which contained classified information. ECF No. 327 at 7. 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. See 44 U.S.C. § 2201(3)(A)
(defining “personal records” to include “diaries, journals or other notes serving as the functional

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.” Special Counsel
Robert K. Hur, Report on the Investigation Into Unauthorized Removal, Retention, and Disclosure
of Classified Documents Discovered at Locations Including the Penn Biden Center and the
Delaware Private Residence of President Joseph R. Biden, Jr. at 181-182 (Feb. 2024).
11
Page 14 Case 9:23-cr-80101-AMC Document 373 Entered on FLSD Docket 03/07/2024 Page 14 of
equivalent of a diary or journal which are not prepared or utilized for, or circulated or
communicated in the course of, transacting Government business”). In any event, the Reagan
example does not override EO 13526, and that text does not authorize Trump’s possession and
storage of classified documents. Nothing in the PRA calls into question the Section 793(e) counts.II.
A Presidential Designation of Records as “Personal” Is Not Binding
Even if the PRA had some bearing on this case, Trump’s claims would fail. The
information in the charged documents pertains to this Nation’s and others’ defense and weapons
capabilities; vulnerabilities to military attack; nuclear programs; and plans for a response to a
foreign attack. ECF No. 85 ¶ 3. And Trump received them from members of the intelligence
community to further the execution of his duties as President. Id. ¶¶ 20-21. Thus, the documents
were “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.” 44 U.S.C. § 2201(2). No conceivable argument exists that
any of them qualifies as “documentary materials . . . of a purely private or nonpublic character
which do not relate to or have an effect upon the carrying out of the constitutional, statutory, or
other official or ceremonial duties of the President.” 44 U.S.C. § 2201(3). As such, they are
indisputably “Presidential records,” not “personal records” within the meaning of the statute.
Tellingly, Trump’s motion to dismiss does not argue that these records are in fact “personal
records” within the meaning of the PRA. Likewise, his motion does not assert (much less try to

At trial, Trump may offer a defense that he did not act willfully because he in fact
designated the documents as personal and in fact mistakenly believed that the PRA provided him
with authorization to keep and withhold classified records from NARA and the grand jury. See
Bryan v. United States, 524 U.S. 184, 191-92 (1988). Any such factual defense regarding his mens
rea would, of course, require as-yet-unseen evidence to support it, but in any event, it would not
affect the legal determination of whether his possession of classified records was unauthorized.
Nor would it provide any basis for dismissing the Superseding Indictment.
12
Page 15 Case 9:23-cr-80101-AMC Document 373 Entered on FLSD Docket 03/07/2024 Page 15 of
show) that he designated these documents as personal records during his presidency. Nor could
he. Not only did he return 15 boxes of documents to NARA in January 2022, see ECF No. ¶¶ 38-49, refuting any suggestion that he viewed them all as “personal records,” but he also stated
at the time that “[t]he National Archives did not ‘find’ anything, they were given, upon request,
Presidential Records in an ordinary and routine process to ensure the preservation of my legacy
and in accordance with the Presidential Records Act.”His reliance on the PRA therefore has no basis in the statute, the Superseding Indictment,
or any real-world facts. Instead, it is premised on two flawed contentions. First, relying on a
statement in an oral argument transcript from an inapposite case, Trump contends (ECF No. at 4-6) that, because he “caused” the documents to be transported to Mar-a-Lago, ECF No. 85 ¶ 4,
rather than the National Archives, the Court must presume that he designated the records as
personal rather than presidential.6 Second, he contends (ECF No. 327 at 6-10) that if the Court
treats the decision to spirit the boxes away as equivalent to a designation of the records as
“personal,” it must treat that decision as conclusive, even if it lacks any colorable legal basis. Both
contentions lack legal support and are fundamentally wrong.
A.
A President Cannot Unilaterally Transform Presidential Records into
Personal Records by Removing Them from the White House
The PRA directs that the President “shall take all such steps as may be necessary to assure
that the activities, deliberations, decisions, and policies that reflect the performance” of his official
duties “are adequately documented and that such records are preserved and maintained as

https://www.nbcnews.com/politics/donald-trump/white-house-records-taken-trumpcontained-classified-information-natio-rcna
(quoting Trump statement).
That purported presumption is crucial to his argument because Trump offers no facts to
support it, perhaps recognizing that doing so would be fatal to a motion to dismiss under Fed. R.
Crim. 12. See United States v. deVegter, 198 F.3d 1324, 1326-27 (11th Cir. 1999).
13
Page 16 Case 9:23-cr-80101-AMC Document 373 Entered on FLSD Docket 03/07/2024 Page 16 of
Presidential records.” 44 U.S.C. § 2203(a). That provision sets a controlling legal standard.
Nothing in the PRA remotely suggests that the President can lawfully convert presidential records
into personal ones simply by removing them from the White House at the end of his term.
To reach a contrary conclusion, Trump relies on a statement made during oral argument
before the district court in Judicial Watch, Inc. v. NARA, 845 F. Supp. 2d 288 (D.D.C. 2012). That
case stemmed from a decision made by President Clinton to “enlist[] historian Taylor Branch to
assist him in creating ‘an oral history of his eight years in office.’” Id. at 290 (quoting complaint).
President Clinton “planned to make first use of [the taped conversations] for his memoirs, then
eventually to release the transcripts at his presidential library.” Taylor Branch, The Clinton Tapes:
Wrestling History with the President 13 (Simon & Schuster 2009).
After Branch published his book, a non-profit organization, Judicial Watch, sent a FOIA
request to the Clinton Library for access to the tapes. Judicial Watch, 845 F. Supp. 2d at 292. The
Supervisory Archivist for the Clinton Library responded that “the requested tapes ‘are not
[P]residential records and therefore are not subject to request under the PRA and FOIA.’” Id.
(quoting complaint). When Judicial Watch appealed to NARA, the Deputy Archivist noted that
NARA had never had custody over the tapes. Id. at 292-93. The Deputy Archivist added that, to
the extent that the appeal asked NARA to “make a further determination that the materials in
question ought to be considered ‘presidential records’ within the meaning of the PRA, we decline
to do so.” Id. at 293 (quoting the letter). The Deputy Archivist “‘consider[ed] the nature of the
audio tapes, if they were created with the intent of their use as government materials, and whether
or not they were circulated within the Administration or relied on as policy documents.’” Id.
Based on the available facts, the Deputy Archivist did “‘not believe the materials in question fall
14
Page 17 Case 9:23-cr-80101-AMC Document 373 Entered on FLSD Docket 03/07/2024 Page 17 of
within the ambit of the PRA,’” and she was instead “‘of the opinion that the audio tapes created
by Taylor Branch are personal records of President Clinton as defined by the PRA.’” Id.
Judicial Watch then filed suit in district court under the Administrative Procedure Act,
asking the court to, among other things, order NARA to “assume custody and control” over the
tapes and “deposit [them] at the Clinton Library.” Id. (quotation marks omitted). The district
court dismissed the case, concluding that even if it agreed with Judicial Watch’s “questionable
characterization” of the recordings as presidential records, the court lacked the authority to compel
NARA to exercise its discretion under the PRA to commence proceedings to recover the records.
Id. at 302.
Trump relies on a statement made at a hearing in the case, in which the district court asked
the government “[w]ho made the classification decision here?” Judicial Watch, Inc. v. NARA, No.
10-cv-1834, ECF No. 14, at 6 (D.D.C. Mar 5, 2012). The government attorney responded, “I think
there are two classification decisions, only one of which the plaintiff is challenging. President
Clinton initially classified the audiotapes as—presumably classified the tapes as personal records
by not transferring them to the archives at the conclusion of his administration.” Id. (emphasis
added). The attorney added that if NARA disagreed with that classification, “then [NARA] can
invoke their enforcement mechanism.” Id. at 6-7.
Based on the italicized statement, Trump attempts to derive a rule that if a President fails
to transfer materials to the Archives at the conclusion of his presidency, a court must conclude that
the President designated the records as personal rather than presidential. ECF No. 327 at 5-6. That
argument takes the oral-argument statement out of context and gives it a meaning it cannot bear.
The tapes in question purported to be “the functional equivalent of a diary,” 44 U.S.C.
§ 2201(3)(A), which the PRA explicitly regards as personal (provided the other conditions of the
15
Page 18 Case 9:23-cr-80101-AMC Document 373 Entered on FLSD Docket 03/07/2024 Page 18 of
statute are met).
In that context, the government’s statement that President Clinton had
“presumably” classified them as personal was unsurprising. At most, the comment reflected a
factual presumption by the attorney handling the hearing; it did not reflect, much less create, any
binding position of the DOJ or legal presumption under the PRA. In any event, that comment has
no application to the very different context here. The documents that Trump removed were
government-created classified records; Trump does not contend that they constitute the functional
equivalent of a diary; and they cannot qualify as “personal records” under any objective view.
B.
Any Implied Designation of Records as “Personal” by a President Who Takes
Them upon Leaving Office Is Not Immune from Judicial Review
Trump asserts that the PRA “‘precludes judicial review of the President’s recordkeeping
practices and decisions,’ including [his] decision to designate materials as Personal Records.” ECF
No. 327 at 6 (quoting Armstrong I, 924 F.2d at 291). Neither Armstrong I nor any other decision
supports that categorical statement and, if it were accepted, it would render the PRA a nullity—
allowing a departing President by fiat to treat all Presidential records as personal records, thus
effectively reviving the very regime that the PRA was enacted to displace.
Armstrong I involved a private action to prevent the President from erasing electronically
stored information at the end of a Presidency. The court of appeals held only that “it is difficult to
conclude that Congress intended to allow courts, at the behest of private citizens, to rule on the
adequacy of the President’s records management practices or overrule his records creation,
management, and disposal decisions.” Armstrong I, 924 F.2d at 290 (emphasis added); see id. at
291. The court did not categorically rule out judicial review. And two years later, in a subsequent
stage of the same case, the court of appeals explained that even in private actions, judicial review
remained available to ensure that the PRA would not become “a potential presidential carte
blanche to shield materials from the reach of the FOIA” by improperly designating records as
16
Page 19 Case 9:23-cr-80101-AMC Document 373 Entered on FLSD Docket 03/07/2024 Page 19 of
presidential records rather than agency records. Armstrong v. Exec. Off. of the President, Off. of
Admin., 1 F.3d 1274, 1292 (D.C. Cir. 1993) (“Armstrong II”). Armstrong I, the court explained,
was limited to precluding judicial review “of the President’s decisions concerning the creation,
management, and disposal of presidential records during his term in office.” Id. at 1294 (emphasis
added). The court allowed review of “guidelines outlining what is, and what is not, a ‘presidential
record’ to ensure that materials that are not subject to the PRA are not treated as presidential
records.” Id.
Neither Armstrong I nor Armstrong II addressed judicial review of presidential decisions
to designate particular records as “personal” or “presidential” records, and neither addressed a
former President’s actions. But the logic of Armstrong II that a President should not have carte
blanche to improperly designate records and thus defeat Congress’s purposes equally applies here.
If Trump had carte blanche to call patently presidential records “personal records,” a President
could defeat the purpose of the PRA to ensure that presidential records remained public property,
and not, as in pre-PRA practice, the personal property of individual Presidents.
The one court that considered whether a former President could have plenary control of
decisions about presidential records rejected that proposition as wholly inconsistent with the
structure and purpose of the PRA. In American Historical Association v. Peterson, 876 F. Supp.
1300 (D.D.C. 1995), President George H.W. Bush made an agreement with the Archivist that
purported to give the outgoing President exclusive control over electronic records from his time in
office. Id. at 1303. The district court held the agreement invalid. Id. at 1318-20. It noted that the
PRA was designed to overcome pre-PRA practice under which “‘Presidents exercised complete
dominion and control over their presidential papers.’” Id. at 1306 (quoting Nixon v. United States,
978 F.2d 1269, 1277 (D.C. Cir. 1992)). The court rejected the submission—resembling Trump’s
17
Page 20 Case 9:23-cr-80101-AMC Document 373 Entered on FLSD Docket 03/07/2024 Page 20 of
position here—that all “discretionary Presidential decisions alleged to be in excess of statutory
authority are nonreviewable.” Id. at 1313 (quotation marks omitted). Rather, the court noted that
Armstrong II permits review of “guidelines for categorizing Presidential records” and that it did
“not necessarily foreclose judicial review of a decision to denominate certain materials ‘personal
records’ of a former President.” Id. at 1314. “Such judicial review may be available to ensure that
Presidential records are not disposed of as personal records at the end of an Administration and
that, instead, all Presidential records fall subject to the Archivist’s ‘affirmative duty to make such
records available to the public.’” Id. (quoting 44 U.S.C. § 2203(g)(1) (emphasis omitted)).
If judicial review were not available, the court explained, a President could make an
“eleventh hour agreement” that would allow him as a private citizen to control the disposition of
“Presidential records following a term in office.” Id. at 1315. “The PRA, however, was passed
precisely in order to preclude former Presidents from disposing of Presidential records as they
please.” Id. Indeed, the court noted, it “borders on the absurd” to think that Congress enacted the
PRA to prevent the disposal of presidential records at will, but simultaneously intended a former
President’s decisions to dispose of such records to “be immune from judicial review.” Id.; accord
Citizens for Resp. & Ethics (“CREW”) v. Cheney, 593 F. Supp. 2d 194, 216 (D.D.C. 2009). The
same principle applies here to prohibit Trump from disposing of presidential records as he pleases
on his way out of the White House: it would be “absurd” to find that the PRA permits that result.
None of the other authorities that Trump cites supports his absolute preclusion-of-review
theory. He acknowledges (ECF No. 327 at 9) that Judicial Watch did not reach that question. See
845 F. Supp. 2d at 298 (expressing doubts about whether former President Clinton’s “retention of
the audiotapes as personal is a matter that is subject to judicial review[,] [b]ut the Court need not
decide this question”). And he cites cases that restrict private actions seeking judicial oversight of
18
Page 21 Case 9:23-cr-80101-AMC Document 373 Entered on FLSD Docket 03/07/2024 Page 21 of
ongoing White House records management practices, CREW v. Trump, 438 F. Supp. 3d 54, (D.D.C. 2020); see also CREW v. Trump, 924 F.3d 602, 609 (D.C. Cir. 2019), but those decisions
are inapposite here, where no private party is seeking to control ongoing White House practices.
For similar reasons, Trump’s reliance on DOJ submissions addressing claims for judicial review
of “day-to-day White House records management decisions under the [PRA]” have no relevance
here. ECF No. 327 at 7 (quotation marks omitted). 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.
Finally, Trump’s position that any presidential designation of records as “personal” is
categorically off limits for judicial review cannot be reconciled with the statutory scheme—which
he embraces—allowing NARA to request the Attorney General to initiate an action to recover
presidential records. As Judicial Watch explained, the PRA permits NARA “to invoke the same
enforcement mechanism embodied in the Federal Records Act, which begins with a request to the
Attorney General to institute an action for the recovery of missing records.” 845 F. Supp. 2d at
302 (citing 44 U.S.C. §§ 2112(c), 3106). The Government has previously brought a replevin action
to recover missing presidential records. Id. (citing United States v. McElvenny, No. 02-3027, WL 1741422 (S.D.N.Y. Apr. 1, 2003) (seeking to recover a map that President Kennedy annotated
during the Cuban Missile Crisis)). That authority necessarily allows a court to decide that missing
presidential records belong to the United States.
On Trump’s contrary reading, a departing President could unilaterally convert classified
government records—containing the Nation’s most closely guarded military, diplomatic, and
national security secrets—into his private possessions, leaving the government with no judicial
recourse to recover its own property and protect the Nation from the risk that the former President
19
Page 22 Case 9:23-cr-80101-AMC Document 373 Entered on FLSD Docket 03/07/2024 Page 22 of
may disclose these secrets to a foreign adversary, post them on the internet, or sell them to the
highest bidder. Even Trump shrinks from that conclusion; instead, he argues (inconsistently and
incorrectly) that the PRA’s civil recovery mechanism is the exclusive means to address a former
President’s unauthorized possession of presidential records. ECF No. 327 at 10-13 (citing Judicial
Watch, 845 F. Supp. 2d at 302). The claim that NARA’s civil remedies are exclusive of criminal
enforcement is wrong, see Section III, infra, but here, the relevant point is that the concession that
the government may sue to recover Presidential records fatally undermines Trump’s claim that his
misappropriation of government records is judicially unreviewable.
Accordingly, even if the Section 793(e) charges depended on whether the underlying
documents were personal or Presidential—which they do not, see Section I, supra—the PRA does
not require that obviously presidential records be treated as personal ones in this case, simply
because Trump removed them from the White House at the end of his term in office. That result
“borders on the absurd.” Am. Hist. Ass’n, 876 F. Supp. at 1315.
III.
The Investigation into Trump’s Unauthorized Retention of Classified Records Was
Valid and Trump’s Contrary View Provides No Defense to Charges that He
Obstructed the Investigation
Finally, Trump contends that NARA made an improper referral to DOJ on February 9,
2022, and that the FBI therefore had no basis to “predicate” an investigation of his unauthorized
possession of classified government documents. ECF No. 327 at 10-13. He claims that, as a result,
the obstruction and false-statement allegations in Counts 33-42 must be dismissed. Id. at 11. Each
aspect of that argument is fundamentally wrong. Nothing in the PRA preempts the application of
federal criminal law or divests the Government of criminal investigative authorities, and in any
event, an individual’s claim that the Government lacked authority to investigate provides no
defense to charges for obstructing its investigation.
20
Page 23 Case 9:23-cr-80101-AMC Document 373 Entered on FLSD Docket 03/07/2024 Page 23 of
A.
NARA’s Remedies Do Not Preempt Criminal Statutes or Investigative
Authorities
Trump contends that “[t]o the extent NARA seeks to recover properly designated
Presidential Records from any third party, including a former president, the PRA provides the
exclusive means for doing so, which is civil rather than criminal in nature.” ECF No. 327 at 11.
That claim is wrong. As Trump notes, the PRA provides the government with civil tools to recover
Presidential records that are improperly in private hands. ECF No. 327 at 12. But nothing in that
civil remedy precludes the application of criminal laws that govern overlapping conduct, such as
Section 793. See United States v. Arif, 897 F.3d 1, 7-9 (1st Cir. 2018) (rejecting similar argument
in the context of FTC regulation and the wire-fraud statute). NARA’s civil remedy assists in
recovering presidential records. Section 793(e), in contrast, addresses criminal threats to national
security posed by the misuse by anyone of national defense information. The two statutory
schemes serve different purposes, contain different enforcement mechanisms, and turn on different
elements of proof. And Congress’s expectation that NARA could refer criminal matters to DOJ in
appropriate cases is reinforced by the statutory requirement that “each Inspector General shall
report expeditiously to the Attorney General whenever the Inspector General has reasonable
grounds to believe there has been a violation of Federal criminal law.” 5 U.S.C. § 404(d). NARA
has an Inspector General, see id. § 415(a) & (b), and NARA, through its Inspector General, made
a referral to DOJ in this case, ECF No. 85 ¶ 50.
Because the PRA and the criminal authorities at issue in this case do not conflict, the PRA
does not impliedly repeal the Government’s criminal authorities. See Carcieri v. Salazar, 555 U.S.
379, 395 (2009) (“[A]bsent a clearly expressed congressional intention, [a]n implied repeal will
only be found where provisions in two statutes are in irreconcilable conflict, or where the latter
Act covers the whole subject of the earlier one and is clearly intended as a substitute.”) (quotation
21
Page 24 Case 9:23-cr-80101-AMC Document 373 Entered on FLSD Docket 03/07/2024 Page 24 of
marks and ellipses omitted); Ray v. Spirit Airlines, Inc., 767 F.3d 1220, 1225 (11th Cir. 2014)
(“[W]hen Congress passes two statutes that may touch on the same subject, we give effect to both
unless doing so would be impossible.”). The Government had a legitimate basis for its criminal
investigation into Trump’s potential violations of law, fully justifying the use of grand jury
subpoenas and a court-ordered search warrant. ECF No. 85 ¶¶ 49-53, 88-90; see also Gov’t Ex. to Mot. to Suppress Response, Search Warrant Affidavit ¶ 79 (attesting to probable cause to believe
that “evidence, contraband, fruits of crime or other items illegally possessed in violation of U.S.C. §§ 793(e), 2071, or 1519 will be found at [Mar-a-Lago]”).
Trump cites no authority holding that an exclusive scheme of civil remedies restricts the
authority of the United States to bring criminal prosecutions under general provisions of the federal
criminal code. He notes that the Supreme Court stated in Kissinger v. Reporters Committee for
Freedom of the Press, 445 U.S. 136, 148-49 (1980), that “[t]he Federal Records Act establishes
one remedy for the improper removal of a record from the agency”—“a system of administrative
standards and enforcement.” ECF No. 327 at 12. But the context of that statement was whether
“a private right of action can be implied” in the Federal Records Act. 445 U.S. at 148. The Court
answered that question “no.” Id. at 148-50. Nothing in Kissinger required the Court to address
whether the Government can investigate the potential commission of federal crimes when a federal
record is unlawfully in the hands of a non-federal party. Nor is Trump assisted by DOJ’s brief in
Judicial Watch stating that “[t]his administrative enforcement scheme is exclusive” and “courts
may not order the recovery or retrieval of records that may have been removed or destroyed.” ECF
No. 327 at 13 (quoting Def. Ex. 2 at 4). Judicial Watch did not involve the use of criminal process
to investigate possible criminal offenses; the case involved only NARA’s remedies, and that was
the topic DOJ’s brief discussed. See Def. Ex. 2 at 13 (“This administrative enforcement scheme
22
Page 25 Case 9:23-cr-80101-AMC Document 373 Entered on FLSD Docket 03/07/2024 Page 25 of
is the exclusive method by which NARA can recover records under the PRA.”). DOJ’s similar
statement at oral argument in Judicial Watch, see ECF No. 327 at 13, nowhere disavows separate
criminal investigative powers, which were not at issue in that case. Likewise, the statement in
Judicial Watch that NARA did not regard itself as empowered to seize records from a former
President, 845 F. Supp. 2d at 302-03, says nothing about whether a grand jury can subpoena
records and whether the FBI can execute a search warrant in a criminal investigation relating to
presidential records.
B.
Trump Had No Right to Lie and Obstruct the FBI’s Investigation
If Trump believed he had a valid legal basis for challenging the Government’s
investigation, he could have moved to quash the grand jury subpoena, and he can move to suppress
the fruits of the search warrant (as he has). But his PRA-based claims gave him no license to
obstruct the Government’s investigation through lies and concealment.
The Supreme Court long ago rejected the contention that a legal objection to the validity
of a proceeding would preclude prosecution under 18 U.S.C. § 1001 for making a false statement
in that proceeding. In Bryson v. United States, 396 U.S. 64 (1969), the defendant was convicted
of making a false statement in violation of Section 1001 in an affidavit denying affiliation with the
Communist Party, which he had filed with the National Labor Relations Board under Section 9(h)
of the National Labor Relations Act. Id. at 65-66. He later contended that Section 9(h) was
constitutionally invalid and that he could not be convicted under Section 1001 for making false
statements in response to questions “that the Government had no right to ask.” Id. at 66. The
Court held that the constitutionality of Section 9(h) was “legally irrelevant to the validity of
petitioner’s conviction under § 1001.” Id. at 68. It relied on Dennis v. United States, 384 U.S. (1966), which held that “‘[t]he governing principle is that a claim of unconstitutionality will not
23
Page 26 Case 9:23-cr-80101-AMC Document 373 Entered on FLSD Docket 03/07/2024 Page 26 of
be heard to excuse a voluntary, deliberate and calculated course of fraud and deceit.’” Bryson, U.S. at 68 (quoting Dennis, 384 U.S. at 867). The Dennis Court explained that “[o]ne who elects
such a course as a means of self-help may not escape the consequences by urging that his conduct
be excused because the statute which he sought to evade is unconstitutional.” 384 U.S. at 867.
Bryson confirmed that legal objections to the government’s right to ask questions do not
justify lying in response. 396 U.S. at 70. The Court recognized that Section 1001 requires that
“the false statement be made ‘in any matter within the jurisdiction of any department or agency of
the United States,’” but it ruled that a constitutional challenge to the agency’s power to ask
questions is no defense. Id. at 70-71. “Our legal system provides methods for challenging the
Government’s right to ask questions,” the Court explained; “lying is not one of them.” Id. at 72.
Accordingly, “one who furnishes false information to the Government in feigned compliance with
a statutory requirement cannot defend against prosecution for his fraud by challenging the validity
of the requirement itself.” United States v. Knox, 396 U.S. 77, 79 (1969); see also United States
v. Holden, 70 F.4th 1015, 1017 (7th Cir. 2023) (“Many decisions of the Supreme Court hold that
false statements may be punished even when the government is not entitled to demand answers.”).
As in Bryson, Dennis, and Knox, Trump’s claim that the government’s investigation was
impermissible does not allow him to obtain dismissal of charges of conspiring to obstruct and
obstructing a federal grand jury (Counts 33-35, 37-38, 40) and an FBI investigation (Count 36, 3738) (see ECF No. 85 ¶¶ 95-96, 99, 101, 103, 105, 107, 114). The FBI had legal authority to
investigate any possible violations of federal criminal law arising from Trump’s conduct, as
detailed in the Superseding Indictment. See 28 U.S.C. §§ 509-510, 531; 28 C.F.R. § 0.85(a). So
too did the grand jury. United States v. R. Enters., 498 U.S. 292, 297 (1991) (“[T]he grand jury
can investigate merely on suspicion that the law is being violated, or even just because it wants
24
Page 27 Case 9:23-cr-80101-AMC Document 373 Entered on FLSD Docket 03/07/2024 Page 27 of
assurance that it is not.”) (quotation marks omitted). Trump does not get a free pass for his alleged
obstruction offenses based on his legal claim that those entities lacked authority to investigate.
Trump relies on a series of inapposite cases in arguing that any flaws in the FBI’s basis for
investigating allowed him to lie to the government, conceal records, and obstruct the grand jury’s
investigation. ECF No. 327 at 11. Those cases address requirements to prove violations of the
charged offenses: United States v. Beach, 80 F.4th 1245, 1256-57 (11th Cir. 2023), addresses the
requirement to prove a nexus to an official investigation under 18 U.S.C. § 1512(a)(2)(A); United
States v. Hunt, 526 F.3d 739, 743 (11th Cir. 2008), holds that the fair-warning requirement of due
process is satisfied when a person knowingly makes a false entry in a document with intent to
impede or influence an FBI investigation under 18 U.S.C. § 1219; and United States v.
Blankenship, 382 F.3d 1110, 1136-40 (11th Cir. 2004)), addresses the requirement to prove that a
false statement or concealment took place in a matter within federal “jurisdiction” under 18 U.S.C.
§ 1001. The Government must prove those elements at trial; they impose no restriction on the
Government’s authority to investigate. Accordingly, Trump’s PRA-exclusivity argument, even if
it had merit (which it does not), cannot support his argument to dismiss the allegations of crimes
that he committed to obstruct the Government’s investigation.
CONCLUSION
The motion to dismiss the Superseding Indictment based on the PRA should be denied.
Respectfully submitted,
JACK SMITH
Special Counsel
N.Y. Bar No.
25
Page 28 Case 9:23-cr-80101-AMC Document 373 Entered on FLSD Docket 03/07/2024 Page 28 of
By:
/s/ Jay I. Bratt
Jay I. Bratt
Counselor to the Special Counsel
Special Bar ID #A950 Pennsylvania Avenue, N.W.
Washington, D.C. David V. Harbach, II
Assistant Special Counsel
Special Bar ID #ACecil W. VanDevender
Assistant Special Counsel
Special Bar ID #A
March 7,
26
Page 29 Case 9:23-cr-80101-AMC Document 373 Entered on FLSD Docket 03/07/2024 Page 29 of
CERTIFICATE OF SERVICE
I hereby certify that on March 7, 2024, I electronically filed the foregoing document with
the Clerk of the Court using CM/ECF, which in turn serves counsel of record via transmission of
Notices of Electronic Filing.
/s/ Jay I. Bratt
Jay I. Bratt
27
Space
Issues Laws Cases Pro Articles Firms Entities
Issues Laws Cases Pro Articles Firms Entities
 

Non-Government Works Copyright © 2001-2024 Think Computer Corporation. All Rights Reserved.

About   Privacy   Security   Contact Us

PlainSite
Sign Up
Need Password Help?