In his latest counterattack, Special Counsel Jack Smith has revealed how deeply sourced his Donald Trump investigation has become, meticulously detailing for the first time how a farfetched legal theory traveled from a conservative activist to the MAGA-friendly federal judge who is employing it in a manner that could save the former president who appointed her.
In his late night Tuesday court filing, federal prosecutors did more than slam U.S. District Judge Aileen M. Cannon’s flawed reasoning that would essentially hand Trump a total victory in the case against him for hoarding national secrets at his South Florida oceanside estate of Mar-a-Lago.
The specially assigned Department of Justice team also mapped out the origin of Trump’s latest defense, the idea that he was justified in keeping hundreds of classified documents after leaving the White House because he considered these government records “personal.”
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That theory started with Tom Fitton, the musclebound activist who isn’t a lawyer but successfully takes on high-profile legal fights through his nonprofit, Judicial Watch. That group specializes in acquiring government records to further conservative narratives and has become increasingly Trumpist over the years.
Like most Trump tales, this one starts with a tweet.
The day after The Washington Post reported that the National Archives had retrieved 15 boxes of government documents from Mar-a-Lago and explored the requirements of returning that kind of material under the Presidential Records Act, Fitton took to Twitter and made a counter-argument.
“Fact check: The left media is being dishonest about the Trump records issue. A president has discretion on what docs to retain as presidential records while in office. So the law allows Trump to tear up documents, shred them, and take documents when he left the White House,” Fitton tweeted.
Fitton’s perspective was informed by the way he tried to acquire audio recordings of historian Taylor Branch’s interviews with former President Bill Clinton for his 2009 book, The Clinton Tapes. The National Archives claimed it didn’t have the recordings, and U.S. District Judge Amy Berman Jackson ultimately decided she couldn’t force the agency to deem Branch’s tapes as official government documents—especially if Clinton considered them “personal.”
“The decision to segregate personal materials from presidential records is made by the president, during the president's term and in his sole discretion,” Jackson wrote in 2012.
Fast forward a decade, and Fitton was fuming that Trump couldn’t do the same with the paperwork he ferried from the White House to Mar-a-Lago.
And this is where the DOJ special counsel’s investigation comes in.
Federal prosecutors yesterday detailed how “immediately after posting the second tweet” on Feb. 8, 2022, Fitton contacted “an employee in Trump’s post-presidency office" and sent them “a link to the tweet and offered to discuss the issue with Trump.” Fitton then shared his analysis of Jackson’s 2012 decision, along with “a proposed public statement for Trump’s consideration” that the former president never issued. However, Fitton also approached a second unnamed Trump “employee” advising that Trump should adopt the new defense that the Mar-a-Lago records were actually “personal” all along.
Hinting at just how extensive the federal investigation has dug into Trump’s private advisers, prosecutors noted how “the second employee advised the Judicial Watch president that they disagreed with the Judicial Watch president’s analysis: in Judicial Watch, former President Clinton had made the designation of certain records personal while president, whereas Trump had not done so.”
But it seems like some of the message got through. Two days later, Trump issued a written public statement that The Washington Post called an “unusually lawyerly response.” The former president stated, “I have been told I was under no obligation to give this material based on various legal rulings that have been made over the years,” and even cited the Clinton tapes case.
Once more, federal prosecutors showed the extent to which they’ve become plugged into the private discussions in the Trump camp as the former president was bracing for legal trouble.
“Before this time, the second employee had never heard this theory from Trump. No other witness recalled Trump espousing this theory until after the Judicial Watch president conveyed it to him in February 2022,” prosecutors said in yesterday’s filing, which was digitally signed by Jay I. Bratt, the counterintelligence chief at the DOJ’s National Security Division who is now serving as a “counselor” to Jack Smith.
Bratt went on to describe how investigators have heard from just about everyone in Trump’s circle during his time in office, telegraphing how deep the bench would be come game time, with useful witnesses against the former president from every corner of the Trump White House.
“During its exhaustive investigation, the government interviewed Trump’s own [Presidential Records Act] representatives and numerous high-ranking officials from the White House—Chiefs of Staff, White House Counsel and senior members of the White House Counsel’s Office, a National Security Advisor, and senior members of the National Security Council,” Bratt wrote, followed by the kill shot.
“Not a single one had heard Trump say that he was designating records as personal or that, at the time he caused the transfer of boxes to Mar-a-Lago, he believed that his removal of records amounted to designating them as personal under the PRA. To the contrary, every witness who was asked this question had never heard such a thing,” he wrote.
The origin story of the “they’re personal” defense is pivotal now. Federal prosecutors are trying to stop Trump from utilizing that excuse to escape criminal charges for whisking away hundreds of classified records from the White House, showing them off in private conversations, initially refusing to return them when approached by the National Archives, eventually turning over some but not all of them, then lying to federal investigators about the ones still in his mansion’s bathroom and other rooms.
Prosecutors are now scrambling to stop Judge Cannon from adopting that legal theory, which she essentially did with a shocking order last month that would effectively force the government to show jurors highly classified records in question or acquit him by saying that he was free to claim as personal whatever he wanted.
That’s why prosecutors are so keen to trace this legal theory back to Judicial Watch and track its movement from a highly partisan activist to the judge who now appears to have accepted it.
Although Trump was indicted in the Mar-a-Lago case in June 2023, the former president only began to raise the “they’re personal” defense eight months later. In February, Trump’s lawyers told Judge Cannon that Trump “exercised virtually unreviewable Article II executive authority to designate the records as personal” when the boxes were moved out to the White House. In their view, the Presidential Records Act would—in theory—allow Trump to redesignate the records as “personal” by the mere fact that he allowed them to be relocated.
Prosecutors on Tuesday cautioned Judge Cannon to avoid embracing this alternative reading of the 1978 Presidential Records Act—which was, ironically, created to force presidents to turn over their administration documents and was a direct response to disgraced President Richard Nixon’s refusal to turn over White House records to the National Archives.
And they stressed that Trump hasn’t even formally asserted that he even deemed these stacks of government paperwork as his own belongings, merely floating the idea instead. Prosecutors derided the whole concocted theory as “Trump’s post hoc legal invention.”
“Importantly, Trump has never represented to this Court that he in fact designated the classified documents as personal,” Bratt wrote, noting that Trump’s legal team didn’t even bring it up at a court hearing last month “despite every opportunity and every incentive to do so.”
“The reason is simple: he never did so,” he wrote. “Instead, he has attempted to fashion out of whole cloth a legal presumption that would operate untethered to any facts—without regard to his actual decisions, his actual intent, the unambiguous definition of what constitutes personal records under the PRA, or the plainly non-personal content of the highly classified documents that he retained.”
