Judge Cannon stated, "I don't see how it leads to a dismissal... Maybe a defense at trial..."
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Defense attorney Todd Blanche argued the Trump position is that the Presidential Records Act gives the president the authority to retain documents he sees fit, and essentially take them home or out of the White House, and if that's accurate, that alone is "fatal" to Special Counsel Jack Smith’s indictment.
"Presidents since George Washington have taken material out of the White House," said Blanche, adding that the PRA was passed in the late 70s and nothing in the statute says anything about documents with markings or anything that gives the National Archives (NARA) the ability to challenge a president's decision about which documents are personal versus presidential.
Team Trump also points out often that then-President Trump caused these boxes to be moved while he was still president and that this is the first time NARA has challenged a decision made by a president about which documents are personal versus presidential. They claim NARA only took this action because the president in question was Donald Trump.
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US District Court Judge Aileen Cannon told Mr. Blanche, "All that might be right. But I don't see how it leads to a dismissal of the indictment...Maybe a defense at trial..."
Blanche replied that this was a "proper" avenue for a dismissal because the government must prove that the possession of the documents was unauthorized.
Republican presidential candidate and former President Donald Trump arrives for an election-night watch party at Mar-a-Lago on March 5, 2024 in West Palm Beach, Florida. (Win McNamee/Getty Images)
However, Judge Cannon seemed to double down, saying the arguments might have, "some force at trial, but it's hard to see how it gets you to a dismissal."
Judge Cannon at one point remarked that the Trump defense team's view of the Presidential Records Act would essentially, "Gut the PRA," giving presidents the unfettered ability to classify clearly presidential records as personal.
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Mr. Blanche replied that it is up to Congress to change the law. "That's what's supposed to happen. DOJ can't just decide..." [what is personal versus presidential]. "We don't have a lot of case law on this because this has never been done before," added Blanche. "While he was the president he took records, like many presidents... For the first time ever NARA took a different path and made a criminal referral," instead of negotiating with the president as had been done in the past.
Judge Cannon at one point said, "Correct... the seizure of a president's records was seen to be an extraordinary act."
Former US President Donald Trump, center, greets attendees during a Super Tuesday election night watch party at the Mar-a-Lago Club in Palm Beach, Florida, US, on Tuesday, March 5, 2024. (Eva Marie Uzcategui/Bloomberg via Getty Images)
Blanche pointed out that in the aftermath of the Clinton presidency, "President Clinton hid tapes in his socks and NARA said there's nothing we can do about that."
Judge Cannon asked if those tapes contained any classified information. Blanche said no one knows because the tapes were never recovered from President Clinton.
Republican presidential candidate and former President Donald Trump gestures to supporters during an election night watch party at the State Fairgrounds on February 24, 2024, in Columbia, South Carolina. (Win McNamee/Getty Images)
"They can't have it both ways," said Blanche. "No effort to investigate whether there was national defense information in President Clinton's socks," but still referring the Trump matter to the DOJ for a potential criminal prosecution.
DOJ prosecutor David Harbach told Judge Cannon that the documents seized at Mar-a-Lago, "were not personal, nowhere close to that.. The only inference is that they were presidential, not personal."
Harbach also went back to one of Judge Cannon's questions to the defense, "Our view is that President Trump's position would completely gut the PRA."
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Mr. Harbach also took pains to stress the independence of Special Counsel Jack Smith's team, "We are not appendages or puppets of the Biden Administration."
Jake Gibson is the Fox News Department of Justice and Federal Law Enforcement Producer
