Former Trump attorney in the classified documents case Jim Trusty joins us to react to Judge Aileen Cannon declining Trump’s request that she dismiss the case based on his arguments that he had the authority to take classified or sensitive documents with him after he left the White House.
We’re joined now by an attorney who used to represent former President Trump in the classified documents case Jim Trusty. And Jim, thank you so much for taking the time to be with us. Sure thing. So you’ve pointed to the Presidential Records Act repeatedly as to why this case should never have been brought with arguments like this Let’s listen.
If the president, under Presidential Records A, has unfettered authority to do what he wants with documentation that he’s taken from the White H while president, look at the Presidential Rec there is absolutely no basis for saying that bureaucracy rule and the president doesn’t have the authority entrusted in him by the voters to possess and to declassify and to hold on, to document, read the personal records and the Presidential Records Act There is the ability of any pres to deem things as personal, to say, I’m going to keep these as personal.
So I wonder, what is your reaction to Judge Cannon saying, quote, The Presidential Records Act does not provide a pretrial to dismiss? Well, I agree with you We just heard from. That’s good news for him. But look, look, what she talked about is at this early juncture of say I’m not going to grant it as it’s not going to serve as a basis for pretrial dismissal.
She is clearly, no matter which side you’re on in this light she’s clearly struggling with how the interaction goes be the Presidential Record Act, which is a form of immunity for presidents and former presidents, frankly, and how that factors into a trip how much of it’s a legal determine how much of it is a fac So, you know, she handed both si some concern today.
The president didn’t get the huge win of being off the hook entirely and having to deal with the app But Jack Smith is apoplectic at this point about the notion that the Presidential Records Act has some play in a case involving a former president. I think I stand by my analysis. It clearly does. And that’s why they’re having all of this shen about jury instructions that have Jack Smith and his underlings very worried about how this trial plays out.
That’s your analysis. If that were her firm analysis, she could have stood by it, but she didn’t. So so what do you attribute to that Is that her, in your opinion, not wanting to ruffle feathers? I don’t know about ruffling feat but it is kind of a standard conservative approach from a judge to say, look, right now I’m just dealing with the four c of the indictment.
And that’s what she specifically said in he And that means you you assume everything is as the prosecution has to say. So if the United States has a very lengthy, as it did in this case indictment that lays out their theory, it’s a very hard pretrial for her I’m going to find factually this is wrong. It’s more ripe after she’s heard evidence after the government’s case or even later than that. And she again, is struggling with the complex issue, I think.
But she is, I don’t think, doing anything that’s kind of crazy from either perspective. She’s saying, I want to hear from you guys about the Presidential Records A And that is absolutely forbidden territory for Jack Smith. They can’t stand the notion that it plays in at. All because we very clearly are or very likely going to hear about this again.
However, she does note that the counts Trump is charged with make no reference to the Presidential Records Act, nor do they rely on that statute for purposes of stating an offense Does that matter? No. I mean, and of course not, because it’s a problem. Even the search warrant way back when, when they raided a Lago, didn’t have a word to say about the presidential re AG And I think it’s because this is a complete about-face by DOJ.
If you look back at how they’ve treated every other president, every modern-day president, including Bill Clinton and the litigation they have with Judicial Watch back in the mid-nineties about his sock drawer full of ta They’ve always said, hey, the president or former president has the authority to essentially possess these ite and call them personal, either by act or by deed. So this is a real about-face.
And I think she’s struggling with that on the motion for differential treatment dismissal for a differential treat where during an argument she had some pretty pointed questions about that. And you bring it up here. Jack Smith says this theory came out not from a lawyer, but from the head of Judicial Wa which is a right-wing activist group.
He traces how it was introduced not as Trump was in discussions with the government ahead of a surprise search. You know, this isn’t something Trump said. Oh, yes, I have these documents and here’ I think that I can keep them. He didn’t mention right, that he had them. This came out after the search many months later, not from him but after he had gotten this inf from a right-wing activist.
If it was something that Trump really believed or that his legal team really was because one of his employees said to Judicial Watch they did not believe that this was correct analysis. Why wouldn’t Trump have put it See, I don’t accept the paradigm I guess is the problem. What Jack Smith wants this court to believe is that if you’re a former president you have to announce for all time to everyone that you leave office.
These are the documents that I p I’m deeming these ones personal and these other ones I’ll talk to archives about this turn as president. That’s just a false narrative. A false model, Classified document You do actually have to do that, Well, not under the Presidential Recor It’s not an. The executive order that’s accepted. And it’s I mean, it’s over It’s just legalistic and kind of a to-do list of what you do to declassify it.
Trump did not pursue that. Well, you are well aware. Well, declassification is different than the prior. But let me just say this. I think and we’ve said from the beginning the people that were representing kept. Classified documents, wouldn’t be personal records unless they had been declassified Now, it’s not it’s actually not connected to classification or declassification So a different paradigm. But let me just finish the thought I was saying, which we’ve said from the beginning that the real problem here is document management.
We entrust our presidents and former presidents with secrets we don’t like, wipe their brains clean, and say, you can’t remember all the things you learned in yo or eight years in office. So the idea that they’d have access or knowledge of these things is something we live with as a s the issue of sending classified documents someplace where they’re not secure is not what you.
Mean, Like you mean like the garage in Dela Right? Well, obviously that’s not okay. Okay. Well, this may. Maybe it is. Maybe it is. I don’t see a prosecution coming To the bathroom in Mar a Lago, a garage in Delaware. Okay. Those were turned back in, as you were aware, for inter And Trump turned in 15 boxes to two archives, which then went out for the first time in history and said, my God, we have to make a criminal refer We find we’re finding certain.
He didn’t cooperate. I mean, we’re. Turning over now. The Presidential Records Act absolutely anticipates years of give and take between the former president and the archive Is the archivist in this case politicized, and decided to make a criminal refer even if there are thousands of classified documents in a warehouse in Illinois under the Obama administration, even though Bill Clinton had really interesting, probably tapes of recordings from the White House, they don’t pick that fight.
They picked the fight here because they wanted to have criminalization of something that’s not criminal under the PR And the DOJ was more than happy to jump all over that. So, again, today’s ruling leaves open the issue of exactly how PR is going to play out, but it won’t be something I would be shocked if there’s a mandamus, which is the big threat coming from Jack Smith, that some higher court is going how dare you even contemplate different jury instructions than Jack wants?
So we’ve got to watch to see if there’s a stay, if there’s an if there’s a mandamus. But the idea that the PRA is dead is really, I think, premature Many of these things are unsettled. And so we will see where they go Jim Trusty, really appreciate it Thank you so much. Thank you. And I want to turn now to our CNN senior legal analyst and former assistant U.S. Attorney Ellie Hoenig. Ellie, you just heard what Jim Trusty said What is your take on this? So, Brianna, I respect Jim.
We were colleagues at DOJ. I disagree with the Presidential R Act itself as a defense in this for two main reasons. The first reason is the facts. There is zero evidence from Donald Trump, from anyone that he ever actually designated these records as personal. And I think notably, none of his lawyers have ever represented to a court that he actually designated these documents as personal. And I heard Jim say, well, there’s not a procedure for that but you have to do something.
There would be some evidence of And then separately, I think there’s a legal problem with it, which is, first of all, a president cannot designate any he wants as personal. He cannot designate highly sensitive military documents, or national security documents as personal and take them. And finally, even if he could, it doesn’t Tru no pun intended.
It doesn’t overcome the criminal law against retaining sensitive national security info So even if this gets to be a defense at trial, I think there’s no real merit to So you hear him draw the parallel with Clint which is something that Trump’s defenders have done and I wonder how you think that Very different case. I think it’s a poor precedent in this case.
First of all, Bill Clinton’s case involved notes of his in audiotapes relating to interviews that he gave with an autobiography completely different than, for example, the documents here, which had to do with warp in Iran in some instances. Second of all, there was an important procedural difference in the Cli what they call the socks case, because reportedly he stored the tapes in his socks drawer, and a private outside party, was trying to force the a to seize those tapes.
And essentially the federal court we don’t order the archives out parties, don’t order the archive what to do. So to me, it’s really an inapplicable exam Where does this leave the time of this case, Ellie? Well, a mess. In short, it was already I think no way that this case was going to get tried before the election. And now I think we have other pending issues.
There is the question that Jim just alluded to about whether Jack Smith might try to go to an appeals co and force the judge’s hand. I think what the judge forecloses makes it impossible to do t because the judge said, well, we’re going to decide when the trial happens and maybe it’s something that will go to the jury. You really can’t appeal that if you’re Jack Smith.
And by the way, this is why I think Jack Smith is concerned with today’s ruling although he won in the sense that the court did not dismiss the charges. If I’m Jack Smith and I think Smith feels the same I’m very worried about this defe going to a jury because it’s con because it’s complicated, because it’s technical. Prosecutors always want to tell a simple, straightforward story. And frankly, defendants want to muck things up.
And as much as I think this defense lacks merit, I do think it could confuse them in a way that would worry me as a prosecutor Yeah, that may be the case. We may have heard the last of ma at least for the time being. However, and for that, we may be Ellie Hoenig, thank you so much.