The Court has issued an order (ECF No. 407) directing the parties to file preliminary
proposed jury instructions and verdict forms for Counts 1-32 of the Superseding Indictment, with
a specific requirement that the parties “engage with [two] competing scenarios and offer alternative
draft text that assumes each scenario to be a correct formulation of the law to be issued to the jury.”
Both scenarios rest on an unstated and fundamentally flawed legal premise—namely, that the
Presidential Records Act (“PRA”), and in particular its distinction between “personal” and
“Presidential” records, see 44 U.S.C. § 2201 (2), (3), determines whether a former President is
“[]authorized,” under the Espionage Act, 18 U.S.C. § 793(e), to possess highly classified
documents and store them in an unsecure facility, despite contrary rules in Executive Order (“EO”)
13526, which governs the possession and storage of classified information.
That legal premise is wrong, and a jury instruction for Section 793 that reflects that premise
would distort the trial. The PRA’s distinction between personal and presidential records has no
bearing on whether a former President’s possession of documents containing national defense
information is authorized under the Espionage Act, and the PRA should play no role in the jury
instructions on the elements of Section 793. See ECF No. 373 at 5-12. Indeed, based on the
current record, the PRA should not play any role at trial at all.
Moreover, it is vitally important that the Court promptly decide whether the unstated legal
premise underlying the recent order does, in the Court’s view, represent “a correct formulation of
the law.” ECF No. 407 at 2. If the Court wrongly concludes that it does, and that it intends to
include the PRA in the jury instructions regarding what is authorized under Section 793, it must
inform the parties of that decision well in advance of trial. The Government must have the
opportunity to consider appellate review well before jeopardy attaches. See, e.g., United States v.
Wexler, 31 F.3d 117, 129 (3d Cir. 1994) (“[T]he adoption of a clearly erroneous jury instruction
that entails a high probability of failure of a prosecution—a failure the government could not then
seek to remedy by appeal or otherwise—constitutes the kind of extraordinary situation in which
we are empowered to issue the writ of mandamus.”);...
...the PRA defines the term “Presidential records” to mean any documentary
materials, or any reasonably segregable portion thereof, created or received by the President, the
President’s immediate staff, or a unit or individual of the Executive Office of the President whose
function is 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. Presidential records do not include “personal records.”
I further instruct you that a President has unreviewable authority to designate any record
whatsoever as personal, regardless of whether it meets the statutory definitions I have just
provided. I further instruct you that, if, before the end of his term in office, a President transfers
records from the White House to any location other than the National Archives and Records
Administration, as alleged in the Superseding Indictment, he has necessarily exercised his
unreviewable authority to designate those records as personal and, as a matter of law, he is
authorized to possess them and you may not find him guilty.
CONCLUSION
For the reasons set forth above and in the Government’s opposition to Trump’s motion to
dismiss based upon the PRA, the Court should reject the legal premise that the PRA’s distinction
between personal and presidential records has any bearing on the element of unauthorized
possession under Section 793(e). As such, it should deny Trump’s pending motion to dismiss and
adopt preliminary jury instructions as proposed by the Government above. If, however, the Court
does not reject that erroneous legal premise, it should make that decision clear now, long before
jeopardy attaches, to allow the Government the opportunity to seek appellate review.
The complete 24-page filing:
https://www.courtlistener.com/docket/67490069/428/united-states-v-trump/
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