Former President Donald Trump has multiple defenses available to try to beat 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, 38-count indictment filed last week by special counsel Jack Smith alleges Mr. Trump recklessly handled some of the nation’s most closely guarded secrets, including documents about nuclear programs and the potential vulnerabilities of the U.S. and its allies.
Mr. Trump, who pleaded not guilty to the charges in a Miami federal court on Tuesday, 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 there are some avenues 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 Kendal Coffey, the former U.S. attorney for the Southern District of Florida, the same jurisdiction where Mr. Trump has been charged.
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Todd Blanche, an attorney representing Mr. Trump in the classified documents case, declined to comment on possible defenses.
Perhaps the strongest defense is one Mr. Trump and his aides have already raised — that the former president could take any documents he wanted 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. However, the law also makes a distinction between official records and personal documents that a president is allowed to keep upon leaving office.
Mr. Trump’s lawyers could argue that his presidential authority grants him the absolute power to declassify documents, an assertion Mr. Trump has already raised publicly. Once declassified, a president can take government property as personal documents.
“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 P. Barr, who served as Mr. Trump’s attorney general, threw cold water on the idea of invoking the Presidential Records Act during a recent Fox News interview, calling 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 Tim Parlatore told CNN last week that under the law, outgoing presidents have two years after they leave office to go through all their documents to figure out which papers are personal and which documents 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 number one target.”
The various interpretations of the Presidential Records Act likely mean its full power and limitations would need to be decided by the federal appellate courts and, ultimately, the Supreme Court 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 defense 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 made by Evan Corcoran, one of Mr. Trump’s lawyers.
The notes, first recorded into an iPhone and put down on paper, provide some of the prosecution’s strongest evidence. They show that Mr. Trump allegedly urged Mr. Corcoran to block government investigators from retrieving the classified material and suggested that he 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 a client used legal advice to further a crime.
Judge Beryl Howell, the chief judge of the Federal District Court in Washington, ruled that Mr. Smith’s team could access Mr. Corcoran’s notes under the crime-fraud exception.
That means Mr. Corcoran, who was 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 lawyer were taken out of context and he was asking what is allowed or not allowed under the law.
Defense attorneys could also point out that Mr. Smith asked a federal judge in the more left-leaning Washington 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 to derail the charges work, legal analysts say Mr. Trump’s team could seek delays of the trial with other motions.
They could keep pushing the case back so it would go to trial after the election. If Mr. Trump were to win the presidency, his attorney general 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.