Page 1 Case 9:23-cr-80101-AMC Document 399 Entered on FLSD Docket 03/13/2024 Page 1 of
UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF FLORIDA
WEST PALM BEACH DIVISION
UNITED STATES OF AMERICA,
vs.
Case No. 23-80101-CR
CANNON/REINHART
DONALD J. TRUMP,
WALTINE NAUTA, and
CARLOS DE OLIVEIRA,
Defendants.
_____________________________________
PRESIDENT TRUMP’S REPLY BRIEF IN FURTHER SUPPORT OF
MOTION TO DISMISS THE INDICTMENT
BASED ON THE PRESIDENTIAL RECORDS ACTPage 2 Case 9:23-cr-80101-AMC Document 399 Entered on FLSD Docket 03/13/2024 Page 2 of
TABLE OF CONTENTS
INTRODUCTION ........................................................................................................................
DISCUSSION ........................................................................................................................
I.
President Trump’s PRA Designations Occurred While He Was President ....................
II.
There Can Be No “Unauthorized” Possession Of Records That A President Designates
As “Personal” Under The PRA ................................................................................................... III.
The Separation Of Powers Doctrine Cannot Save The Superseding Indictment............
IV.
The Special Counsel’s Office Cannot Escape Judicial Watch And History ..................
V.
NARA’s Unlawful Agency Action Supports Dismissal .................................................
VI.
NARA’s Exclusive Remedy For Records Collection Is Civil Rather Than Criminal ....
CONCLUSION ........................................................................................................................
10Page 3 Case 9:23-cr-80101-AMC Document 399 Entered on FLSD Docket 03/13/2024 Page 3 of
INTRODUCTION
President Donald J. Trump respectfully submits this reply in support of his motion to
dismiss the Superseding Indictment pursuant to the Presidential Records Act (“PRA”) (the
“Motion”), and in response to the amicus brief filed by America First Legal Foundation, ECF No.
360-1 (the “Amicus Brief”) and the opposition brief by the Special Counsel’s Office, ECF No. (the “Opposition”).
The Superseding Indictment must be dismissed. First, because President Trump designated
the documents at issue in Counts 1–32 as “personal records” pursuant to the PRA, the Special
Counsel’s Office is foreclosed as a matter of law from establishing that President Trump’s
retention of the records was “unauthorized” under 18 U.S.C. § 793(e). DOJ, NARA, and even the
Biden Administration’s White House Counsel have taken similar positions by arguing that PRA
designations by former Presidents and Vice Presidents are not reviewable in criminal proceedings.
The Office’s contrary position in these proceedings is meritless and precluded by estoppel
principles. Second, because NARA’s actions were politically motivated and driven by the Biden
Administration as a political weapon against President Trump, NARA’s February 2022 sham
referral and its May 2022 rejection of President Trump’s executive privilege claim violated the
Administrative Procedure Act. As to the referral, in light of the unbroken chain of custom and
history of NARA inaction with respect to PRA records designations, there were not “reasonable
grounds to believe there ha[d] been a violation of Federal criminal law” for purposes of a referral
under the Inspector General Act, 5 U.S.C. § 404(d). Therefore, the non-Espionage Act charges
must be dismissed as well.Page 4 Case 9:23-cr-80101-AMC Document 399 Entered on FLSD Docket 03/13/2024 Page 4 of
DISCUSSION
I.
President Trump’s PRA Designations Occurred While He Was President
President Trump’s designation of records as “personal” under the PRA by allegedly
removing them from the White House while acting as President is not the product of “alchemy.”
Oppn. at 5. Rather, this is the only fair inference from the Office’s allegation in the Superseding
Indictment that President Trump “caused” boxes “to be transported” to Mar-a-Lago at a time when
he was still President. ECF No. 85 ¶ 4. 1 The Office has acknowledged as much. ECF No. 277 at
3 (arguing that the “genesis” of this case dates back to “the tail end of the Trump Administration
itself”); see also Oppn. at 19 (referring to “[President] Trump’s eleventh-hour actions at the end
of his presidency”). This is also the same inference DOJ, NARA, and a district court granted
President Clinton in Judicial Watch. Similarly in January 2023, a NARA official wrote to former
Presidents and Vice Presidents to inquire about “materials previously assumed to be personal in
nature.” 2 The Office makes no effort to address the judicial-estoppel implications of DOJ’s
representations to the court in Judicial Watch and CREW v. Trump. See Mot. at 10.
II.
There Can Be No “Unauthorized” Possession Of Records That A President
Designates As “Personal” Under The PRA
The Superseding Indictment “fail[s] to state an offense” with respect to Counts 1–32, see
Fed. R. Crim. P. 12(b)(3)(B)(v), because the PRA authorized President Trump to maintain
possession of records that he used Article II authority, as President, to designate as “personal.”
President Trump’s subsequent decision to “return” records in the 15 Boxes or in response to a
grand jury subpoena did not invalidate his earlier designation. Oppn. at 13. “By giving each
President complete control over his personal papers, Congress hoped that it would encourage
Presidents to create and preserve such papers, and that Presidents would later voluntarily donate
those papers to the National Archives.” ECF No. 327-1 at 63 (DOJ brief in Judicial Watch).
Michael D. Shear, As Archives Leans on Ex-Presidents, Its Only Weapon Is ‘Please’, N.Y. TIMES
(Jan. 27, 2023), https://www.nytimes.com/2023/01/27/us/politics/national-archives-bushclassified-documents.html.
2Page 5 Case 9:23-cr-80101-AMC Document 399 Entered on FLSD Docket 03/13/2024 Page 5 of
See United States v. Berdeal, 595 F. Supp. 2d 1326, 1328 (S.D. Fla. 2009) (“[A]n indictment fails
as a matter of law if the defendants’ charged conduct, even if true, does not violate the statute or
provision cited in the indictment.”); United States v. Madera, 528 F.3d 852, 859 (11th Cir. 2008);
United States v. Bobo, 344 F.3d 1076, 1086 (11th Cir. 2003); United States v. Matassini, 565 F.2d
1297, 1313-14 (5th Cir. 1978).
Moreover, because of the ambiguous nature of the term
“unauthorized” in 18 U.S.C. § 793(e), see ECF No. 325 at 7-8, the rule of lenity further supports
dismissal. E.g., United States v. Watts, 896 F.3d 1245, 1255 (11th Cir. 2018).
The argument to the contrary by the Special Counsel’s Office proceeds by characterizing
the National Security Act, 50 U.S.C. § 3161(a), as a delegation of authority to the Executive
Branch that led to the promulgation of Executive Order 13526. See Oppn. at 7-8. The National
Security Act was signed in 1947, prior to the enactment of the PRA. Pursuant to § 3161(a), in
1951, President Truman signed Executive Order 10290, which was one of a series of successive
Executive Orders similar to Executive Order 13526. See Executive Order No. 10290, 16 Fed. Reg.
9795 (Sept. 24, 1951). Thus, by the time Congress enacted the PRA in 1978, it was well aware of
the authorities the Office is attempting to rely on—and Congress did not draw the distinction
pressed by the Office between classified and unclassified records in the PRA. See Hall v. United
States, 566 U.S. 506, 516 (2012) (“We assume that Congress is aware of existing law when it
passes legislation.”) (cleaned up). To the contrary, as the Office acknowledges, the PRA “does
not address the subject of classified information at all.” Oppn. at 9.
The text of the National Security Act does not support the position of the Special Counsel’s
Office.
The Office admits that Congress “exempted the President” from the scope of the
regulations authorized by 50 U.S.C. § 3161(a), but the Office contends that the “exemption” is
irrelevant because it does not apply to a “former President.”
Oppn. at 7.
The assertionPage 6 Case 9:23-cr-80101-AMC Document 399 Entered on FLSD Docket 03/13/2024 Page 6 of
misapprehends the relevant timeframe. President Trump designated the records as personal under
the PRA while he was still in Office, not as a “former President.” At the time of the designation,
he was expressly exempted from the provisions of Title 50, Subchapter VI, and regulations
promulgated thereunder. See 50 U.S.C. § 3163. For that reason, the Eleventh Circuit’s assertion
in a different setting that Executive Order 13526 “pertains equally to former Presidents” is of no
consequence for purposes of this motion. Trump v. United States, 2022 WL 4366684, at *8 (11th
Cir. 2022).
Furthermore, Executive Order 13526 does not—and cannot—override the PRA. See
Marks v. CIA, 590 F.2d 997, 1003 (D.C. Cir. 1978) (“Of course, an executive order cannot
supersede a statute.”). Under § 6.1(hh) of Executive Order 13526, the term “[r]ecords” means, in
pertinent part, “Presidential papers or Presidential records, as those terms are defined in title 44,
United States Code.” Executive Order No. 13526, 75 Fed. Reg. 707 (Dec. 29, 2009). Thus, the
Executive Order addresses “classified [presidential] records.” See, e.g., id. § 3.2; see also id. §
3.4(b) (“The Archivist shall conduct a systematic declassification review program for classified
records . . . .”). But the Executive Order makes no provision for records that a President designates
as personal under the PRA, rather than “Presidential,” id. § 6.1(hh)—whether or not they are
allegedly classified. So Executive Order No. 13526 does not address, much less refute, President
Trump’s argument regarding his PRA designations.
The suggestion by the Special Counsel’s Office that President Trump’s designations of the
records is implausible does not stand to reason. See Oppn. at 9-10. For example, in addition to
excluding “personal records,” the PRA’s definition of “Presidential records” does not include
“official records of an agency” or “extra copies of documents . . . .” 44 U.S.C. § 2201(2)(B).
Surely no one from, for example, the National Security Council or the Intelligence Community
4Page 7 Case 9:23-cr-80101-AMC Document 399 Entered on FLSD Docket 03/13/2024 Page 7 of
left individual original documents in the Oval Office following briefing to President Trump and
failed to retrieve the documents before the end of President Trump’s first term. The PRA conferred
discretion on the President to designate those records as personal while he was in Office, 44 U.S.C.
§ 2203(b), NARA’s “responsibility” under the PRA is expressly limited to records deemed
“Presidential,” id. § 2203(g)(1), and NARA did not “assume responsibility” for those records
designated “Presidential” until after President Trump’s first term, id. None of these provisions
distinguish between classified and unclassified records.
The Special Counsel’s Office cannot escape the import of the PRA’s textual commitments
of discretion and authority to President Trump during his first term. President Trump also made
his PRA designations with the full force of the “Article II authority” referenced by the Office.
Oppn. at 8; see also ECF No. 346 at 7 (reasoning that President Trump was “once the country’s
chief classification authority”). As a result of President Trump’s designation of the records as
personal under the PRA, Counts 1–32 fail to state an offense because his alleged retention of the
documents was not “unauthorized.” Therefore, these charges must be dismissed.
III.
The Separation Of Powers Doctrine Cannot Save The Superseding Indictment
There is no “constitutional question” for the Court to “avoid.” Oppn. at 10. DOJ and
NARA invoked the possibility of “stark separation of powers” problems in Judicial Watch, but in
a manner that is at odds with the Special Counsel’s Office. Mot. at 11. In Judicial Watch, the
concern was that judicial review of President Clinton’s individual document designations under
the PRA would lead to impermissible interbranch conflict. The argument was well-founded. See
Armstrong v. Bush (“Armstrong I”), 924 F.2d 282, 290 (D.C. Cir. 1991) (“The Archivist also lacks
the authority under the PRA to inspect the President’s records or survey the President’s records
management practices.”); CREW v. Cheney, 593 F. Supp. 2d 194, 225 (D.D.C. 2009) (“[T]he Court
5Page 8 Case 9:23-cr-80101-AMC Document 399 Entered on FLSD Docket 03/13/2024 Page 8 of
is left with the undeniable conclusion that Congress vested almost no authority in the Archivist
and NARA over Vice-Presidential records during a Vice President’s term in office.”).
As was DOJ’s contention to another federal judge in 2023, which the Special Counsel’s
Office does not address, that “D.C. Circuit precedent provides that the Court lacks jurisdiction to
review such day-to-day White House records management decisions under the Presidential
Records Act.” ECF No. 327-1 at 14. Indeed, Congress was “keenly aware of the separation of
powers concerns that were implicated by legislation regulating the conduct of the President’s daily
operations,” and sought “assiduously to minimize outside interference with the day-to-day
operations of the President.” Armstrong I, 924 F.2d at 290; see also CREW v. Trump, 924 F.3d
602, 609 (D.C. Cir. 2019) (“[C]ourts have no jurisdiction to review the President’s ‘day-to-day
operations.’”).
The unreviewable “day-to-day” operations of the White House include PRA designations
by President Trump towards the end of his first term in Office. President Obama did not suggest
otherwise when he promulgated Executive Order No. 13526 in 2009, decades after Congress
enacted the PRA in 1978. Because the definition of “records” in Executive Order No. expressly does not reach personal records under the PRA, the Court would not disrespect the
Executive Order or the Executive Branch by interpreting the PRA according to its plain terms.
Thus, the constitutional avoidance cannon has no relevance here.
IV.
The Special Counsel’s Office Cannot Escape Judicial Watch And History
President Clinton’s classified tapes, President Reagan’s classified diaries, and the recent
position taken by President Biden’s White Counsel all support President Trump’s motion.
The Special Counsel’s Office does not dispute that President Clinton’s tapes contained
classified information. That much is clear. In Judicial Watch, a DOJ attorney represented to a
6Page 9 Case 9:23-cr-80101-AMC Document 399 Entered on FLSD Docket 03/13/2024 Page 9 of
federal judge that President Clinton “presumably classified the tapes as personal records by not
transferring them” to NARA. Oppn. at 15. That contention, alone, should be extremely persuasive
in this proceeding involving attorneys representing the same government. But President Trump’s
reliance on Judicial Watch is not limited to that part of the transcript. DOJ also contended in
Judicial Watch that the PRA’s “administrative enforcement scheme is exclusive,” and argued that
Congress would have to “pass a [new] law” to address any problems with Presidents not properly
designating records under the PRA. Mot. at 13. There is a bill pending in the U.S. House of
Representatives that may accomplish some of these things, but the absence of such an enactment
in January 2021 further supports President Trump’s position that the PRA applies without
limitation to the records at issue in this case. See id. at 6 n.6. The Special Counsel’s Office failed
to address the significance of H.R. 1791.
The court in Judicial Watch agreed with DOJ based on reasoning that is persuasive here.
The PRA only authorizes NARA to take possession of “records that were designated as
Presidential” by the President. Judicial Watch, Inc. v. NARA, 845 F. Supp. 2d 288, 300 (D.D.C.
2012). The designation decision is “to be made by the executive.” Id. NARA lacks “mandatory
or even discretionary authority” to challenge those designations, and the PRA provides NARA
with “no role with respect to personal records.” Id. at 291, 301. Judicial Watch is the only case
cited by either side involving document-specific PRA designations, as opposed to Presidential
“agreement[s]” with NARA in tension with the PRA and Presidents’ PRA policies and
“guidelines,” which may be subject to limited review in civil and administrative proceedings. See
Oppn. at 17-18. DOJ and NARA did not question President Clinton’s possession of tapes
containing classified information, and it was inconceivable to all involved in Judicial Watch that
7Page 10 Case 9:23-cr-80101-AMC Document 399 Entered on FLSD Docket 03/13/2024 Page 10 of
there was any mechanism, much less a criminal mechanism, to recover them directly from a former
President.
DOJ, NARA, and other agencies took the same approach with respect to President Regan’s
diaries, which “contained classified information.” Oppn. at 11. The Special Counsel’s Office tries
to seize on the reference to “diaries” in the PRA’s definition of “personal records,” 44 U.S.C.
§ 2201(3)(A), but that argument is inconsistent with the Office’s attempt to “harmonize[]” the
PRA and Executive Order 13526. Oppn. at 10. If Executive Order No. 13526 and its predecessors
apply to classified information in “personal” records under the PRA—which would be inconsistent
with the Order’s definition of “records,” as noted above—then the Order’s predecessors applied
to President Reagan’s diaries and President Clinton’s tapes to the same extent as President Trump’s
personal records. These are indeed “real-world facts.” Id. at 13. No one interpreted these
authorities in that fashion until President Trump announced he was running for reelection.
Not even the Biden Administration. Specifically, “[t]he White House Counsel’s Office
and Mr. Biden’s personal attorneys have argued . . . that . . . the [PRA] authorizes a former
president or vice president to keep classified materials in locations that are not approved for storage
of classified information at home, as long as those materials are not defined as presidential records
under the [PRA].” Hur Report at 180. This Special Counsel’s Office should not be permitted to
prevail on the contrary position here in connection with efforts to incapacitate President Biden’s
chief political rival and the Republican nominee for President.
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V.
NARA’s Unlawful Agency Action Supports Dismissal
The non-Espionage Act counts in the Superseding Indictment cannot stand because they
are based on unlawful agency action, in violation of the PRA and the Administrative Procedure
Act. See Mot. at 10-13; see also Amicus Br. at 8-10.
Beginning in September 2021, NARA worked with the Biden Administration on a
politically motivated mission to investigate President Trump by abusing the PRA. NARA’s
response to this political pressure renders unlawful the agency’s actions, including the February
2022 sham referral, ECF No. 262 at 8-10, and the May 2022 purported waiver of President
Trump’s executive privilege, id. at 11. See Amicus Br. at 8-10 (citing, inter alia, Aera Energy
LLC v. Salazar, 642 F.3d 212, 221 (D.C. Cir. 2011) (reasoning that “political pressure invalidates
agency action . . . when it shapes, in whole or in part, the judgment of the ultimate agency
decisionmaker”)). The Special Counsel’s Office cites the Inspector General Act, 5 U.S.C.
§ 404(d), but fails to respond to President Trump’s additional argument that the sham referral was
unlawful. In light of NARA’s customs and practices, there were not “reasonable grounds to
believe there ha[d] been a violation of Federal criminal law,” under § 404(d), because President
Trump’s retention of “personal” PRA records was not “unauthorized” under § 793(e). Compare
Oppn. at 21, with Mot. at 10-11. Therefore, the referral was an improper agency action, in violation
of the APA. Courts have dismissed charges that are based on unlawful agency action. See Amicus
Br. at 17-19 (citing cases).
VI.
NARA’s Exclusive Remedy For Records Collection Is Civil Rather Than Criminal
Finally, it is straightforward to “reconcile[]” President Trump’s position that a President’s
PRA designations of individual documents as “personal” cannot lead to “unauthorized” possession
of those documents—which is supported by prior positions of DOJ, NARA, and the Biden
9Page 12 Case 9:23-cr-80101-AMC Document 399 Entered on FLSD Docket 03/13/2024 Page 12 of
Administration’s White House Counsel—with the exclusive nature of the civil recovery
mechanism that has been incorporated into the PRA.
Oppn. at 19; see also Prosecutorial
Misconduct Oppn. at 5 (conceding that “NARA . . . has no enforcement authority”).
“Agreements,” “policies,” and “guidelines” relating to the PRA may be reviewable, but that must
occur in civil proceedings rather than criminal prosecutions. Am. Historical Ass’n v. Peterson,
876 F. Supp. 1300, 1313 (D.D.C. 1995); Cheney, 593 F. Supp. 2d at 217.
In addition, to our knowledge, there has never been an effort to use a civil replevin action
to collect allegedly Presidential records from a former President. Rather, all replevin actions for
this purpose have been brought against third parties and Presidential successors who never wielded
Article II authority and the discretion to designate records as personal conferred by Congress in
the PRA. The absence of a criminal penalty in the PRA, and the existence of an exclusive civil
recovery mechanism that has not been applied to former Presidents, are both consistent with this
motion. And “[s]uch a lack of historical precedent is generally a telling indication of a severe
constitutional problem with the asserted power.” Trump v. Anderson, 2024 WL 899207, at *(Mar. 4, 2024) (cleaned up); see also Mot. at 10 (citing additional cases). The Special Counsel’s
Office expresses concern that a former President might try to “sell” personal documents to the
“highest bidder.” Oppn. at 20. That is what President Clinton did by permitting Taylor Branch to
write about tapes containing classified information. In response, DOJ and NARA hardly lifted a
finger, and no one raided President Clinton’s home. The Special Counsel’s Office should not be
permitted to predicate an unlawful prosecution on a contrary interpretation of the PRA.
CONCLUSION
For the foregoing reasons, the Superseding Indictment must be dismissed.
10Page 13 Case 9:23-cr-80101-AMC Document 399 Entered on FLSD Docket 03/13/2024 Page 13 of
Dated: March 13,
Respectfully submitted,
/s/ Todd Blanche
Todd Blanche (PHV)
toddblanche@blanchelaw.com
Emil Bove (PHV)
emil.bove@blanchelaw.com
BLANCHE LAW PLLC
99 Wall Street, Suite New York, New York (212) 716-/s/ Christopher M. Kise
Christopher M. Kise
Florida Bar No. ckise@continentalpllc.com
CONTINENTAL PLLC
255 Alhambra Circle, Suite Coral Gables, Florida (305) 677-Counsel for President Donald J. Trump
11Page 14 Case 9:23-cr-80101-AMC Document 399 Entered on FLSD Docket 03/13/2024 Page 14 of
CERTIFICATE OF SERVICE
I, Christopher Kise, certify that on March 13, 2024, I electronically filed the foregoing
document with the Clerk of Court using CM/ECF.
/s/ Christopher Kise
Christopher Kise
PDF Page 1
PlainSite Cover Page
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Case 9:23-cr-80101-AMC Document 399 Entered on FLSD Docket 03/13/2024 Page 1 of 14
UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF FLORIDA
WEST PALM BEACH DIVISION
UNITED STATES OF AMERICA,
vs.
Case No. 23-80101-CR
CANNON/REINHART
DONALD J. TRUMP,
WALTINE NAUTA, and
CARLOS DE OLIVEIRA,
Defendants.
_____________________________________
PRESIDENT TRUMP’S REPLY BRIEF IN FURTHER SUPPORT OF
MOTION TO DISMISS THE INDICTMENT
BASED ON THE PRESIDENTIAL RECORDS ACT
PDF Page 3
Case 9:23-cr-80101-AMC Document 399 Entered on FLSD Docket 03/13/2024 Page 2 of 14
TABLE OF CONTENTS
INTRODUCTION .......................................................................................................................... 1
DISCUSSION ................................................................................................................................. 2
I.
President Trump’s PRA Designations Occurred While He Was President .................... 2
II.
There Can Be No “Unauthorized” Possession Of Records That A President Designates
As “Personal” Under The PRA ................................................................................................... 2
III.
The Separation Of Powers Doctrine Cannot Save The Superseding Indictment............ 5
IV.
The Special Counsel’s Office Cannot Escape Judicial Watch And History .................. 6
V.
NARA’s Unlawful Agency Action Supports Dismissal ................................................. 9
VI.
NARA’s Exclusive Remedy For Records Collection Is Civil Rather Than Criminal .... 9
CONCLUSION ............................................................................................................................. 10
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INTRODUCTION
President Donald J. Trump respectfully submits this reply in support of his motion to
dismiss the Superseding Indictment pursuant to the Presidential Records Act (“PRA”) (the
“Motion”), and in response to the amicus brief filed by America First Legal Foundation, ECF No.
360-1 (the “Amicus Brief”) and the opposition brief by the Special Counsel’s Office, ECF No. 373
(the “Opposition”).
The Superseding Indictment must be dismissed. First, because President Trump designated
the documents at issue in Counts 1–32 as “personal records” pursuant to the PRA, the Special
Counsel’s Office is foreclosed as a matter of law from establishing that President Trump’s
retention of the records was “unauthorized” under 18 U.S.C. § 793(e). DOJ, NARA, and even the
Biden Administration’s White House Counsel have taken similar positions by arguing that PRA
designations by former Presidents and Vice Presidents are not reviewable in criminal proceedings.
The Office’s contrary position in these proceedings is meritless and precluded by estoppel
principles. Second, because NARA’s actions were politically motivated and driven by the Biden
Administration as a political weapon against President Trump, NARA’s February 2022 sham
referral and its May 2022 rejection of President Trump’s executive privilege claim violated the
Administrative Procedure Act. As to the referral, in light of the unbroken chain of custom and
history of NARA inaction with respect to PRA records designations, there were not “reasonable
grounds to believe there ha[d] been a violation of Federal criminal law” for purposes of a referral
under the Inspector General Act, 5 U.S.C. § 404(d). Therefore, the non-Espionage Act charges
must be dismissed as well.
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DISCUSSION
I.
President Trump’s PRA Designations Occurred While He Was President
President Trump’s designation of records as “personal” under the PRA by allegedly
removing them from the White House while acting as President is not the product of “alchemy.”
Oppn. at 5. Rather, this is the only fair inference from the Office’s allegation in the Superseding
Indictment that President Trump “caused” boxes “to be transported” to Mar-a-Lago at a time when
he was still President. ECF No. 85 ¶ 4. 1 The Office has acknowledged as much. ECF No. 277 at
3 (arguing that the “genesis” of this case dates back to “the tail end of the Trump Administration
itself”); see also Oppn. at 19 (referring to “[President] Trump’s eleventh-hour actions at the end
of his presidency”). This is also the same inference DOJ, NARA, and a district court granted
President Clinton in Judicial Watch. Similarly in January 2023, a NARA official wrote to former
Presidents and Vice Presidents to inquire about “materials previously assumed to be personal in
nature.” 2 The Office makes no effort to address the judicial-estoppel implications of DOJ’s
representations to the court in Judicial Watch and CREW v. Trump. See Mot. at 10.
II.
There Can Be No “Unauthorized” Possession Of Records That A President
Designates As “Personal” Under The PRA
The Superseding Indictment “fail[s] to state an offense” with respect to Counts 1–32, see
Fed. R. Crim. P. 12(b)(3)(B)(v), because the PRA authorized President Trump to maintain
possession of records that he used Article II authority, as President, to designate as “personal.”
1
President Trump’s subsequent decision to “return” records in the 15 Boxes or in response to a
grand jury subpoena did not invalidate his earlier designation. Oppn. at 13. “By giving each
President complete control over his personal papers, Congress hoped that it would encourage
Presidents to create and preserve such papers, and that Presidents would later voluntarily donate
those papers to the National Archives.” ECF No. 327-1 at 63 (DOJ brief in Judicial Watch).
2
Michael D. Shear, As Archives Leans on Ex-Presidents, Its Only Weapon Is ‘Please’, N.Y. TIMES
(Jan. 27, 2023), https://www.nytimes.com/2023/01/27/us/politics/national-archives-bushclassified-documents.html.
2
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See United States v. Berdeal, 595 F. Supp. 2d 1326, 1328 (S.D. Fla. 2009) (“[A]n indictment fails
as a matter of law if the defendants’ charged conduct, even if true, does not violate the statute or
provision cited in the indictment.”); United States v. Madera, 528 F.3d 852, 859 (11th Cir. 2008);
United States v. Bobo, 344 F.3d 1076, 1086 (11th Cir. 2003); United States v. Matassini, 565 F.2d
1297, 1313-14 (5th Cir. 1978).
Moreover, because of the ambiguous nature of the term
“unauthorized” in 18 U.S.C. § 793(e), see ECF No. 325 at 7-8, the rule of lenity further supports
dismissal. E.g., United States v. Watts, 896 F.3d 1245, 1255 (11th Cir. 2018).
The argument to the contrary by the Special Counsel’s Office proceeds by characterizing
the National Security Act, 50 U.S.C. § 3161(a), as a delegation of authority to the Executive
Branch that led to the promulgation of Executive Order 13526. See Oppn. at 7-8. The National
Security Act was signed in 1947, prior to the enactment of the PRA. Pursuant to § 3161(a), in
1951, President Truman signed Executive Order 10290, which was one of a series of successive
Executive Orders similar to Executive Order 13526. See Executive Order No. 10290, 16 Fed. Reg.
9795 (Sept. 24, 1951). Thus, by the time Congress enacted the PRA in 1978, it was well aware of
the authorities the Office is attempting to rely on—and Congress did not draw the distinction
pressed by the Office between classified and unclassified records in the PRA. See Hall v. United
States, 566 U.S. 506, 516 (2012) (“We assume that Congress is aware of existing law when it
passes legislation.”) (cleaned up). To the contrary, as the Office acknowledges, the PRA “does
not address the subject of classified information at all.” Oppn. at 9.
The text of the National Security Act does not support the position of the Special Counsel’s
Office.
The Office admits that Congress “exempted the President” from the scope of the
regulations authorized by 50 U.S.C. § 3161(a), but the Office contends that the “exemption” is
irrelevant because it does not apply to a “former President.”
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Oppn. at 7.
The assertion
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misapprehends the relevant timeframe. President Trump designated the records as personal under
the PRA while he was still in Office, not as a “former President.” At the time of the designation,
he was expressly exempted from the provisions of Title 50, Subchapter VI, and regulations
promulgated thereunder. See 50 U.S.C. § 3163. For that reason, the Eleventh Circuit’s assertion
in a different setting that Executive Order 13526 “pertains equally to former Presidents” is of no
consequence for purposes of this motion. Trump v. United States, 2022 WL 4366684, at *8 (11th
Cir. 2022).
Furthermore, Executive Order 13526 does not—and cannot—override the PRA. See
Marks v. CIA, 590 F.2d 997, 1003 (D.C. Cir. 1978) (“Of course, an executive order cannot
supersede a statute.”). Under § 6.1(hh) of Executive Order 13526, the term “[r]ecords” means, in
pertinent part, “Presidential papers or Presidential records, as those terms are defined in title 44,
United States Code.” Executive Order No. 13526, 75 Fed. Reg. 707 (Dec. 29, 2009). Thus, the
Executive Order addresses “classified [presidential] records.” See, e.g., id. § 3.2; see also id. §
3.4(b) (“The Archivist shall conduct a systematic declassification review program for classified
records . . . .”). But the Executive Order makes no provision for records that a President designates
as personal under the PRA, rather than “Presidential,” id. § 6.1(hh)—whether or not they are
allegedly classified. So Executive Order No. 13526 does not address, much less refute, President
Trump’s argument regarding his PRA designations.
The suggestion by the Special Counsel’s Office that President Trump’s designations of the
records is implausible does not stand to reason. See Oppn. at 9-10. For example, in addition to
excluding “personal records,” the PRA’s definition of “Presidential records” does not include
“official records of an agency” or “extra copies of documents . . . .” 44 U.S.C. § 2201(2)(B).
Surely no one from, for example, the National Security Council or the Intelligence Community
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left individual original documents in the Oval Office following briefing to President Trump and
failed to retrieve the documents before the end of President Trump’s first term. The PRA conferred
discretion on the President to designate those records as personal while he was in Office, 44 U.S.C.
§ 2203(b), NARA’s “responsibility” under the PRA is expressly limited to records deemed
“Presidential,” id. § 2203(g)(1), and NARA did not “assume responsibility” for those records
designated “Presidential” until after President Trump’s first term, id. None of these provisions
distinguish between classified and unclassified records.
The Special Counsel’s Office cannot escape the import of the PRA’s textual commitments
of discretion and authority to President Trump during his first term. President Trump also made
his PRA designations with the full force of the “Article II authority” referenced by the Office.
Oppn. at 8; see also ECF No. 346 at 7 (reasoning that President Trump was “once the country’s
chief classification authority”). As a result of President Trump’s designation of the records as
personal under the PRA, Counts 1–32 fail to state an offense because his alleged retention of the
documents was not “unauthorized.” Therefore, these charges must be dismissed.
III.
The Separation Of Powers Doctrine Cannot Save The Superseding Indictment
There is no “constitutional question” for the Court to “avoid.” Oppn. at 10. DOJ and
NARA invoked the possibility of “stark separation of powers” problems in Judicial Watch, but in
a manner that is at odds with the Special Counsel’s Office. Mot. at 11. In Judicial Watch, the
concern was that judicial review of President Clinton’s individual document designations under
the PRA would lead to impermissible interbranch conflict. The argument was well-founded. See
Armstrong v. Bush (“Armstrong I”), 924 F.2d 282, 290 (D.C. Cir. 1991) (“The Archivist also lacks
the authority under the PRA to inspect the President’s records or survey the President’s records
management practices.”); CREW v. Cheney, 593 F. Supp. 2d 194, 225 (D.D.C. 2009) (“[T]he Court
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is left with the undeniable conclusion that Congress vested almost no authority in the Archivist
and NARA over Vice-Presidential records during a Vice President’s term in office.”).
As was DOJ’s contention to another federal judge in 2023, which the Special Counsel’s
Office does not address, that “D.C. Circuit precedent provides that the Court lacks jurisdiction to
review such day-to-day White House records management decisions under the Presidential
Records Act.” ECF No. 327-1 at 14. Indeed, Congress was “keenly aware of the separation of
powers concerns that were implicated by legislation regulating the conduct of the President’s daily
operations,” and sought “assiduously to minimize outside interference with the day-to-day
operations of the President.” Armstrong I, 924 F.2d at 290; see also CREW v. Trump, 924 F.3d
602, 609 (D.C. Cir. 2019) (“[C]ourts have no jurisdiction to review the President’s ‘day-to-day
operations.’”).
The unreviewable “day-to-day” operations of the White House include PRA designations
by President Trump towards the end of his first term in Office. President Obama did not suggest
otherwise when he promulgated Executive Order No. 13526 in 2009, decades after Congress
enacted the PRA in 1978. Because the definition of “records” in Executive Order No. 13526
expressly does not reach personal records under the PRA, the Court would not disrespect the
Executive Order or the Executive Branch by interpreting the PRA according to its plain terms.
Thus, the constitutional avoidance cannon has no relevance here.
IV.
The Special Counsel’s Office Cannot Escape Judicial Watch And History
President Clinton’s classified tapes, President Reagan’s classified diaries, and the recent
position taken by President Biden’s White Counsel all support President Trump’s motion.
The Special Counsel’s Office does not dispute that President Clinton’s tapes contained
classified information. That much is clear. In Judicial Watch, a DOJ attorney represented to a
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federal judge that President Clinton “presumably classified the tapes as personal records by not
transferring them” to NARA. Oppn. at 15. That contention, alone, should be extremely persuasive
in this proceeding involving attorneys representing the same government. But President Trump’s
reliance on Judicial Watch is not limited to that part of the transcript. DOJ also contended in
Judicial Watch that the PRA’s “administrative enforcement scheme is exclusive,” and argued that
Congress would have to “pass a [new] law” to address any problems with Presidents not properly
designating records under the PRA. Mot. at 13. There is a bill pending in the U.S. House of
Representatives that may accomplish some of these things, but the absence of such an enactment
in January 2021 further supports President Trump’s position that the PRA applies without
limitation to the records at issue in this case. See id. at 6 n.6. The Special Counsel’s Office failed
to address the significance of H.R. 1791.
The court in Judicial Watch agreed with DOJ based on reasoning that is persuasive here.
The PRA only authorizes NARA to take possession of “records that were designated as
Presidential” by the President. Judicial Watch, Inc. v. NARA, 845 F. Supp. 2d 288, 300 (D.D.C.
2012). The designation decision is “to be made by the executive.” Id. NARA lacks “mandatory
or even discretionary authority” to challenge those designations, and the PRA provides NARA
with “no role with respect to personal records.” Id. at 291, 301. Judicial Watch is the only case
cited by either side involving document-specific PRA designations, as opposed to Presidential
“agreement[s]” with NARA in tension with the PRA and Presidents’ PRA policies and
“guidelines,” which may be subject to limited review in civil and administrative proceedings. See
Oppn. at 17-18. DOJ and NARA did not question President Clinton’s possession of tapes
containing classified information, and it was inconceivable to all involved in Judicial Watch that
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there was any mechanism, much less a criminal mechanism, to recover them directly from a former
President.
DOJ, NARA, and other agencies took the same approach with respect to President Regan’s
diaries, which “contained classified information.” Oppn. at 11. The Special Counsel’s Office tries
to seize on the reference to “diaries” in the PRA’s definition of “personal records,” 44 U.S.C.
§ 2201(3)(A), but that argument is inconsistent with the Office’s attempt to “harmonize[]” the
PRA and Executive Order 13526. Oppn. at 10. If Executive Order No. 13526 and its predecessors
apply to classified information in “personal” records under the PRA—which would be inconsistent
with the Order’s definition of “records,” as noted above—then the Order’s predecessors applied
to President Reagan’s diaries and President Clinton’s tapes to the same extent as President Trump’s
personal records. These are indeed “real-world facts.” Id. at 13. No one interpreted these
authorities in that fashion until President Trump announced he was running for reelection.
Not even the Biden Administration. Specifically, “[t]he White House Counsel’s Office
and Mr. Biden’s personal attorneys have argued . . . that . . . the [PRA] authorizes a former
president or vice president to keep classified materials in locations that are not approved for storage
of classified information at home, as long as those materials are not defined as presidential records
under the [PRA].” Hur Report at 180. This Special Counsel’s Office should not be permitted to
prevail on the contrary position here in connection with efforts to incapacitate President Biden’s
chief political rival and the Republican nominee for President.
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V.
NARA’s Unlawful Agency Action Supports Dismissal
The non-Espionage Act counts in the Superseding Indictment cannot stand because they
are based on unlawful agency action, in violation of the PRA and the Administrative Procedure
Act. See Mot. at 10-13; see also Amicus Br. at 8-10.
Beginning in September 2021, NARA worked with the Biden Administration on a
politically motivated mission to investigate President Trump by abusing the PRA. NARA’s
response to this political pressure renders unlawful the agency’s actions, including the February
2022 sham referral, ECF No. 262 at 8-10, and the May 2022 purported waiver of President
Trump’s executive privilege, id. at 11. See Amicus Br. at 8-10 (citing, inter alia, Aera Energy
LLC v. Salazar, 642 F.3d 212, 221 (D.C. Cir. 2011) (reasoning that “political pressure invalidates
agency action . . . when it shapes, in whole or in part, the judgment of the ultimate agency
decisionmaker”)). The Special Counsel’s Office cites the Inspector General Act, 5 U.S.C.
§ 404(d), but fails to respond to President Trump’s additional argument that the sham referral was
unlawful. In light of NARA’s customs and practices, there were not “reasonable grounds to
believe there ha[d] been a violation of Federal criminal law,” under § 404(d), because President
Trump’s retention of “personal” PRA records was not “unauthorized” under § 793(e). Compare
Oppn. at 21, with Mot. at 10-11. Therefore, the referral was an improper agency action, in violation
of the APA. Courts have dismissed charges that are based on unlawful agency action. See Amicus
Br. at 17-19 (citing cases).
VI.
NARA’s Exclusive Remedy For Records Collection Is Civil Rather Than Criminal
Finally, it is straightforward to “reconcile[]” President Trump’s position that a President’s
PRA designations of individual documents as “personal” cannot lead to “unauthorized” possession
of those documents—which is supported by prior positions of DOJ, NARA, and the Biden
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Administration’s White House Counsel—with the exclusive nature of the civil recovery
mechanism that has been incorporated into the PRA.
Oppn. at 19; see also Prosecutorial
Misconduct Oppn. at 5 (conceding that “NARA . . . has no enforcement authority”).
“Agreements,” “policies,” and “guidelines” relating to the PRA may be reviewable, but that must
occur in civil proceedings rather than criminal prosecutions. Am. Historical Ass’n v. Peterson,
876 F. Supp. 1300, 1313 (D.D.C. 1995); Cheney, 593 F. Supp. 2d at 217.
In addition, to our knowledge, there has never been an effort to use a civil replevin action
to collect allegedly Presidential records from a former President. Rather, all replevin actions for
this purpose have been brought against third parties and Presidential successors who never wielded
Article II authority and the discretion to designate records as personal conferred by Congress in
the PRA. The absence of a criminal penalty in the PRA, and the existence of an exclusive civil
recovery mechanism that has not been applied to former Presidents, are both consistent with this
motion. And “[s]uch a lack of historical precedent is generally a telling indication of a severe
constitutional problem with the asserted power.” Trump v. Anderson, 2024 WL 899207, at *5
(Mar. 4, 2024) (cleaned up); see also Mot. at 10 (citing additional cases). The Special Counsel’s
Office expresses concern that a former President might try to “sell” personal documents to the
“highest bidder.” Oppn. at 20. That is what President Clinton did by permitting Taylor Branch to
write about tapes containing classified information. In response, DOJ and NARA hardly lifted a
finger, and no one raided President Clinton’s home. The Special Counsel’s Office should not be
permitted to predicate an unlawful prosecution on a contrary interpretation of the PRA.
CONCLUSION
For the foregoing reasons, the Superseding Indictment must be dismissed.
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Dated: March 13, 2024
Respectfully submitted,
/s/ Todd Blanche
Todd Blanche (PHV)
toddblanche@blanchelaw.com
Emil Bove (PHV)
emil.bove@blanchelaw.com
BLANCHE LAW PLLC
99 Wall Street, Suite 4460
New York, New York 10005
(212) 716-1250
/s/ Christopher M. Kise
Christopher M. Kise
Florida Bar No. 855545
ckise@continentalpllc.com
CONTINENTAL PLLC
255 Alhambra Circle, Suite 640
Coral Gables, Florida 33134
(305) 677-2707
Counsel for President Donald J. Trump
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CERTIFICATE OF SERVICE
I, Christopher Kise, certify that on March 13, 2024, I electronically filed the foregoing
document with the Clerk of Court using CM/ECF.
/s/ Christopher Kise
Christopher Kise
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