What to know ahead of Trump’s classified documents hearing Thursday

FORT PIERCE, Fla. — U.S. District Judge Aileen M. Cannon will hold a hearing Thursday morning on two of Donald Trump’s requests to dismiss his 40-count federal indictment for allegedly mishandling classified documents and obstructing officials’ attempts to retrieve them.

One of the requests centers on the Presidential Records Act. The other is focused on Trump’s claim that the section of the Espionage Act he is accused of violating “is unconstitutionally vague as applied to President Trump.”

Cannon could schedule hearings on other dismissal motions the former president has filed in coming weeks.

Here are key laws and arguments to know ahead of Thursday’s hearing.

What is the Presidential Records Act?

The Presidential Records Act, or PRA, was passed in 1978 after President Richard M. Nixon sought to destroy White House tapes during the Watergate scandal. It says presidential records belong to the public and are to be turned over to the National Archives and Records Administration at the end of a presidency. The act also covers vice-presidential records and applies to classified documents, which are also governed by other laws.

Before Nixon, presidential records had been considered private property. The law defines “presidential records” as documentary materials received by the president, his immediate staff or members of the executive office “to advise or assist the President, in the course of conducting activities which relate to or have an effect upon the carrying out of the constitutional, statutory, or other official or ceremonial duties of the President.”

What does Trump say about the PRA?

Trump’s lawyers argued in a 17-page filing last month that as president, he had “virtually unreviewable” authority to designate presidential records as personal ones. They said the National Archives has authority over only presidential records — not personal ones — and therefore had no right to demand that he return the materials.

“The PRA conferred unreviewable discretion on President Trump to designate the records at issue as personal,” his lawyers wrote. “As such, President Trump’s possession of those records was not unauthorized.”

Trump’s legal team also argues that the responsibility to recover presidential documents falls to the Archives, as a civil matter, and that the records agency should not have referred the matter to the Justice Department for potential criminal prosecution.

How did prosecutors respond?

Lawyers working for special counsel Jack Smith said Trump’s reading of the PRA is wrong and relies on the faulty view that “as a former president, the Nation’s laws and principles of accountability that govern every other citizen do not apply to him.”

The materials Trump allegedly took from the White House are “indisputably presidential, not personal,” prosecutors wrote, adding that even if Trump did designate the material as personal, the PRA would still not apply to classified information found at Mar-a-Lago, his Florida home and private club.

“Nothing in the PRA leaves it to a President to make unilateral, unreviewable, and perpetually binding decisions to remove presidential records from the White House in a manner that thwarts the operation of the PRA-a statute designed to ensure that presidential records are the property of the United States and that they are preserved for the people,” the 29-page filing reads.

Smith’s team also decisively rejected Trump’s claim that the involvement of the Archives in the initial effort to retrieve the presidential records means the Justice Department cannot bring criminal charges. Trump is not criminally charged with violating the PRA, and prosecutors said that “nothing in that civil remedy precludes the application of criminal laws that govern overlapping conduct.”

What do experts say?

Legal experts have said multiple federal laws protect national security information — and whether Trump considers the materials classified or personal property is irrelevant if they contain some of the nation’s secrets.

Jason R. Baron, former director of litigation at the National Archives, called Trump’s reading of the PRA “absurd.”

According to Baron, presidents are allowed to sort through their materials when leaving office and determine which are personal and which are presidential. But he said the filings by Trump’s lawyers contain no evidence that Trump made any notable effort to segregate the materials that were found in his possession.

Baron also said a president cannot designate classified materials as personal.

“The argument that merely by transferring boxes to Mar-a-Lago converts the legal status of their contents from presidential records to personal is absurd,” Baron said. “There is no evidence of reasonable efforts being taken to separate personal from presidential records. A president cannot designate records about White House official business — classified or unclassified — as personal.”

What charges does Trump call ‘unconstitutionally vague’?

In a separate motion to dismiss the case, Trump’s lawyers say the section of the Espionage Act that he is accused of violating “is unconstitutionally vague as applied to President Trump.” That section bars the willful retention of national defense information by someone not authorized to have it. Trump is essentially saying that as president, he was the person who had ultimate authority to determine what is classified. He therefore cannot be considered someone who is unauthorized to view these materials, according to his dismissal motion.

Trump’s lawyers also appear to argue that the term “national defense information” is broad and that Congress has provided no guidance to conclusively determine what it includes.

How did the special counsel team respond?

Federal prosecutors again reject Trump’s argument as plain wrong, arguing that decades of court precedent makes it clear Trump had no authority to possess classified documents after leaving the White House — particularly at Mar-a-Lago, a club that has visitors coming in and out each day.

“Trump fails to explain how his prior status as an original classifying authority has any bearing on whether he could retain classified documents post-presidency, whether or not he had a role in classifying,” the government filing reads.

Prosecutors also said that as the former commander in chief, Trump should have been fluent in the laws safeguarding classified materials and known immediately that the content of the materials he allegedly retained was sensitive national defense information.