Legal analyst asserts Trump’s right to crucial records in federal criminal case.

Legal Analyst: Trump’s Retention of Presidential Records Within His Rights

According to legal analyst Mike Davis, former President Donald Trump had the right to hold onto records from his time as president despite federal prosecutors arguing the move constituted willful retention of national defense information.

Davis, who served as a legal counsel to Sen. Chuck Grassley (R-Iowa) and clerk for a federal judge, and now heads the Article III Project, explained that the 37-count federal indictment against Trump is legally flawed when compared to past court precedents surrounding presidential records.

“Former presidents are allowed to have their presidential records when they leave office, whether they are classified or not, and that is in the Presidential Records Act. And that’s why Congress gives former presidents secure office space, federally funded staff, and Secret Service protection in the heavily guarded office of the former president,” Davis said in a Wednesday interview with NTD’s “Capitol Report.”

Davis criticized President Joe Biden’s Justice Department, Attorney General Merrick Garland, and special counsel Jack Smith for ignoring the wording and case law surrounding the issue, which should have involved the Presidential Records Act (PRA), and instead charging Trump with violating the Espionage Act.

The 37-count indictment (pdf) against Trump includes 31 counts of willful retention of classified information, in violation of the Espionage Act.

“They can’t charge espionage for something a former president is allowed to have under the Presidential Records Act,” Davis asserted.

Davis emphasized that there was no evidence in the indictment suggesting that Trump intended to harm U.S. national security with the documents found by federal prosecutors.

“There’s no evidence whatsoever he tried to harm America with [the records] and he’s allowed to have them under the Presidential Records Act, so how can you charge a president for retaining his presidential records under the Espionage Act and try to throw him in jail for the rest of his life?” Davis questioned.

The Sock Drawer Standard

The Presidential Records Act (PRA) establishes a system where a president must categorize records from their time in office as either presidential or personal.

Since the indictment, Trump and his supporters have pointed to past court cases that demonstrated a president’s authority to make decisions regarding the disposal of documents, with neither the NARA Archivist nor Congress having the power to overrule a president’s judgment.

Trump specifically referenced a 2012 court case in which Judicial Watch sought to compel NARA to collect and disclose recordings that former President Bill Clinton had retained from his time in office. Clinton had reportedly kept dozens of these tapes in his sock drawer. Judge Amy Berman Jackson, an appointee of President Barack Obama, ruled in favor of allowing Clinton to withhold the recordings in a 2012 ruling (pdf).

“This Obama judge held that President Clinton could have eight years of highly classified audio recordings of his presidency, including discussions with foreign leaders—obviously highly classified—in his sock drawer,” Davis highlighted. “There was no raid. There was no indictment.”

Political Motives Behind Charges

Davis, along with Trump and several other Republican politicians, believes that the decision to indict Trump over his retention of documents is politically motivated.

“This is a bogus political hit by Biden to go after Trump because they fear he’s going to win the next election,” Davis claimed.

In a separate interview with “Capitol Report,” Rep. Andy Biggs (R-Ariz.) stated, “I think everybody’s in agreement that this is disparate and politically motivated.”

Biggs pointed out that other political officials, such as former Secretary of State Hillary Clinton and Biden himself, have not faced federal charges despite retaining classified documents.

Biden has denied having any involvement in the decision to indict Trump, who was his opponent in the 2020 election and currently leads the 2024 Republican primary field.

Garland also defended Smith’s decision to charge Trump on Wednesday, stating that the prosecutor “has assembled a group of experienced and talented prosecutors and agents who share his commitment to integrity and the rule of law.”

The Peril of Process Crimes

Former Assistant U.S. Attorney John O’Connor, like Davis, has expressed skepticism about the legal validity of the charges against Trump under the Espionage Act.

“Even with the Presidential Records Act, the president has some unspecified time within which to hand over the documents,” O’Connor explained. “So mere possession of classified documents by an ex-president is not illegal, should not be looked at as illegal. And so, yes, it’s a very flimsy basis to say that there’s anything wrong with him possessing classified documents. I don’t buy it.”

O’Connor, however, has expressed concern about Trump’s alleged conduct when faced with the…