Former President Donald Trump has multiple defenses available to fight federal criminal charges of mishandling classified documents and obstructing justice, legal scholars say.
Among the strongest legal options for Mr. Trump are invoking the Presidential Records Act and suppressing notes from one of his attorneys.
The sprawling, 37-count indictment filed last week by special counsel Jack Smith claims Mr. Trump recklessly handled some of the nation’s most closely guarded secrets, including documents about nuclear programs and potential vulnerabilities of the U.S. and its allies.
Mr. Trump, who pleaded not guilty to the charges on Tuesday in a federal courtroom in Miami, is also accused of blocking the government’s efforts to retrieve the classified materials.
The severity of the charges might make it difficult for Mr. Trump’s legal team to mount a defense, but analysts say some avenues are open to the former president.
“Obviously, this is a serious case, but I think it is a case that could be won by the defense. There are areas of potential vulnerability for the government,” said Kendall Coffey, a former U.S. attorney for the Southern District of Florida, where Mr. Trump was charged.
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“The government is relying on testimony from Trump’s lawyer. It doesn’t always work out when lawyers are put on the stand who cooperated against their own client. That’s just one area of potential vulnerability for the government,” Mr. Coffey continued.
Todd Blanche, a lawyer representing Mr. Trump in the classified documents case, declined to comment on possible defenses.
Mr. Trump and his aides might have already raised the strongest defense: that a president can take any documents he wants under the Presidential Records Act.
The 1978 statute gives the National Archives and Records Administration complete ownership and control of presidential records at the end of an administration but makes a distinction between official records and personal documents.
Defense attorneys could argue that Mr. Trump’s presidential authority granted him absolute power to declassify documents. Mr. Trump has already made that assertion. A president can take government property as personal documents once they are declassified.
“It would radically deflate the government’s case if the defense managed to make a successful argument about the Presidential Records Act,” said Joseph Moreno, a former federal prosecutor.
The full scope of the Presidential Records Act has never been fully litigated and is open to different legal interpretations.
William Barr, who served as attorney general in Mr. Trump’s administration, threw cold water on the idea of invoking the Presidential Records Act. During a recent Fox News interview, he called it “facially ridiculous.”
“They’re the government’s documents — they’re official records,” Mr. Barr said. “They’re not his personal records. Battle plans for an attack on another country or Defense Department documents about our capabilities are in no universe Donald J. Trump’s personal documents.”
Former Trump attorney Timothy Parlatore told CNN last week that the law gives outgoing presidents two years after they leave office to review all their documents to determine which papers are personal and which are presidential.
Mr. Trump was not charged with violating the Presidential Records Act, which has no defined penalties. The statute is not mentioned at all in the 49-page indictment.
“The fact that the Justice Department doesn’t address it in the indictment makes me think they are a little wary of it,” Mr. Moreno said. “I would be all over that if I was on Trump’s team and make that my No. 1 target.”
The various interpretations of the Presidential Records Act likely mean federal appellate courts and, ultimately, the Supreme Court would need to decide its full power and limitations before Mr. Trump’s legal team can invoke it as a defense.
“It’s extraordinarily rare to get an appeal before the case goes to trial, but there is nothing about this case that is normal,” Mr. Coffey said.
Regardless of how a defense involving the Presidential Records Act might shake out, Mr. Trump clearly believes it’s his strongest argument.
“Under the Presidential Records Act, I’m allowed to do all of this,” he wrote on Truth Social after the indictment was unsealed. He repeated that claim in a speech in Georgia over the weekend.
Another potential attack for the defense would be notes written by Evan Corcoran, one of Mr. Trump’s attorneys.
The notes, first recorded into an iPhone and put down on paper, provide some of the prosecution’s strongest evidence. They suggest that Mr. Trump urged Mr. Corcoran to block government investigators from retrieving the classified material and suggested that Mr. Corcoran lie to investigators or withhold the documents altogether.
Mr. Smith gained access to the notes under the crime-fraud exception. The exception allows prosecutors to remove the shield of attorney-client privilege if they have evidence that a client used legal advice to further a crime.
Judge Beryl Howell, the chief judge of the U.S. District Court for the District of Columbia, ruled that Mr. Smith’s team could access Mr. Corcoran’s notes under the crime-fraud exception.
That means Mr. Corcoran, hired by Mr. Trump to fend off prosecutors in the classified documents case, could be a key prosecution witness.
Mr. Corcoran recused himself in April from representing the former president in the documents case but is representing Mr. Trump in other matters.
Legal analysts say the use of Mr. Corcoran’s notes opens up two areas of attack for Mr. Trump’s team.
First, the defense could argue that Mr. Trump’s statements to his attorney were taken out of context and he was asking what is allowed or not allowed under the law.
Defense attorneys also could point out that Mr. Smith asked a federal judge in the more left-leaning District to decide the crime-fraud exception while indicting Mr. Trump in Southern Florida.
“Trump’s team could argue the law for the government is more favorable in D.C. and the government did some maneuvering to get a home-field advantage,” Mr. Coffey said. “The defense can ask a Florida federal judge to reconsider it, arguing precedent is different there.”
If none of these attempts derails the charges, legal analysts say, Mr. Trump’s team could seek trial delays with other motions.
They could keep pushing back the case so it would go to trial after the election. If Mr. Trump wins the presidency, either the attorney general he appoints could withdraw the case or he could pardon himself.
“Even if Trump’s lawyers don’t try to delay it, it is possible that it won’t go to trial until after the election,” Mr. Moreno said. “Classified documents make this more cumbersome because there is an entire process that needs to be gone through to bring classified documents into a civilian court.”
• Jeff Mordock can be reached at jmordock@washingtontimes.com.
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