Courts & Litigation Executive Branch

Judge Cannon’s Thursday Hearing on Two Trump Motions to Dismiss

Roger Parloff
Tuesday, March 19, 2024, 4:31 PM

Is the Espionage Act unconstitutionally vague as applied to Trump, and was it repealed as to presidents by the Presidential Records Act?

Former President Donald Trump aboard Marine One lands back at Mar-a-Lago, March 29, 2019 (Trump White House Archives,; Public Domain)

Published by The Lawfare Institute
in Cooperation With

As we await the 10 a.m. start of the hearing at the Alto Lee Adams, Sr. federal courthouse in Fort Pierce, Florida, a younger reporter asks me if I, too, hear music from the Trump rally outside, four floors below. Honestly, I don’t, though my hearing is in decline. But five hours earlier, when I arrived outside the courthouse, police were setting up barricades in anticipation of the rally. 

Crews from three TV networks were then already in line before me—although one used line sitters. The reporter who scored the coveted first spot—she relieved her line sitter around 7 a.m.—would not end up making it into the courtroom, however. After the building opened at 8, she rapidly signed in at the jury assembly room on the second floor—again, first. But then she made the fatal mistake of stepping outside the building again. When police suddenly cordoned off the streets and sidewalks at 9:10—15 minutes before defendant and former President Donald J. Trump’s motorcade arrived—she was marooned, unable to get back by 9:30, when the clerk called names to determine the dozen or so reporters who would be permitted into Judge Aileen Cannon’s smallish courtroom. (The rest could watch on screens from the jury assembly room, though camera sight-lines are narrowly focused on the bench and the speaker’s lectern.)

Those of us who did make it into the courtroom had, by then, passed through two magnetometers—one at the building entrance and a second just outside the courtroom itself. At the latter, court officers asked those with water bottles to take gulps from them, apparently to make sure they weren’t toting liquid explosives.

At about 9:50 a.m., Trump and his entourage of lawyers and security personnel stream into the courtroom through a door used by no one else today—one on the right side in front of the “bar” separating spectators from lawyers who have entered appearances.

Trump undeniably has a certain presence. He is heavy, hulking, lumbering, and grim, and looks straight ahead as he enters the courtroom. He is one of the very few male blondes in the courtroom today. And he exudes the aura of a man who prefers to be feared than liked.

Once seated, at an L-shaped assemblage of counsel tables on the left side of the room (from my perspective), he passes the time by speaking almost nonstop to his lead counsel, Todd Blanche, who is seated to his right. Trump often smiles at what he’s saying. To Trump’s left are two more of his counsel, Emil Bove and, at the elbow of the L, Christopher Kise. Trump’s two co-defendants and their four counsel, who will not have speaking roles today, are arrayed along the left side of the table.

At the counsel table to the right sit the two members of the special counsel’s team who will argue today: Counselor to the Special Counsel Jay Bratt and Assistant Special Counsel David Harbach II. Behind them, seated just in front of the bar, is their boss, Special Counsel Jack Smith. To Smith’s right are senior team members Ray Hulser and J.P. Cooney. (Each worked with Smith previously, when he headed the U.S. Department of Justice’s Public Integrity Section from 2010 to 2015.)

Judge Cannon, federal district judge of the Southern District of Florida, takes the bench punctually at about 10:00 a.m. She explains that she’ll be hearing argument today on two of Trump’s motions. First will be his motion to dismiss the first 32 counts of the indictment on the theory that the Espionage Act charges under 18 U.S.C. § 793(e)—willful retention of national defense information—are unconstitutionally vague as applied to him. (The government’s opposition is here, and Trump’s reply is here.)

After that she will take up argument on Trump’s motion to dismiss the indictment based on his interpretation of the Presidential Records Act (PRA). (The government’s opposition to that motion is here, and Trump’s reply is here.)

At Judge Cannon’s invitation, Trump counsel Bove advances to the lectern, squarely in front of the judge’s bench.

Trump contends, Bove tells her, that three aspects of Section 793(e) are unconstitutionally vague as applied to “President Trump.” (Trump’s lawyers always refer to the defendant that way, while government attorneys call him “former President Trump.”) 

The three unconstitutionally vague phrases, Bove explains, are “unauthorized possession,” “relating to national defense,” and “entitled to receive.”

Italicizing and boldfacing these phrases, the statute reads in relevant part:

Whoever having unauthorized possession of ... any document ... relating to the national defense, or information relating to the national defense which information the possessor has reason to believe could be used to the injury of the United States or to the advantage of any foreign nation ... willfully retains the same and fails to deliver it to the officer or employee of the United States entitled to receive it [shall be guilty of a crime].

Bove asserts that four aspects of Trump’s status as an ex-president render the statute vague as applied to him: First, Trump acted as the “original classification authority” for the documents. Second, he designated these documents as “personal” pursuant to the PRA. Third, he had recourse to executive privilege. And, fourth, he had presidential immunity for his official acts.

Judge Cannon interrupts: Does this motion depend on resolution of any facts?

I don’t believe so, says Bove.   

Judge Cannon is skeptical. Trump’s designation of the records as personal is not an alleged fact in the indictment, she observes. (A defendant cannot dispute facts in a motion to dismiss.) Isn’t this motion thus premature? Perhaps there is another posture, she suggests, where the court could take up such issues, like when discussing jury instructions. Why are we having this as an “as applied” discussion now?

Two reasons, Bove responds. The indictment says that Trump caused these records to be removed from the White House while he was president. You can draw an inference from that language that removal constitutes his designation of the records as personal. That’s the Judicial Watch case, he says.

Judicial Watch, Inc. v. National Archives and Records Service involved the so-called Clinton Socks Case. President Bill Clinton had asked historian Taylor Branch to help him create an oral history of his tenure by making 79 tapes, which Branch later turned into a book. The tapes included interviews with Clinton but also some actual White House events, including Clinton’s portion of phone calls. After Clinton left office, Judicial Watch, a right-wing public interest group, sought the tapes from the National Archives and Records Administration (NARA) under the Freedom of Information Act. The deputy archivist denied the request, explaining that NARA did not possess the tapes, never had, and regarded them as personal, not presidential, materials. Judicial Watch then sued NARA, seeking to force it to declare the tapes to be presidential, to somehow claw them back from Clinton, and to provide copies. U.S. District Judge Amy Berman Jackson dismissed the suit. Her ruling strongly suggested that NARA had no power to review Clinton’s apparent determination that the tapes were personal. While she seemed to agree with NARA that the records were personal, she wrote that, even if she didn’t, she doubted she had the power to question Clinton’s determination. Further, though NARA had discretionary authority to ask the attorney general to seek recovery of missing records, she had no power to force NARA to make such a request.

The specific “inference” Bove is referring to in court—that a president’s removal of documents from the White House constitutes a declaration that they are personal—does not actually come from Jackson’s ruling at all, but rather from the transcript of a hearing before Jackson in March 2012. There, a Department of Justice attorney commented in passing, “President Clinton ... presumably classified the tapes as personal records by not transferring them to the [A]rchives at the conclusion of his administration.”

Judge Cannon protests, again, that the indictment doesn’t say that the records are personal. So isn’t this motion premature?

I don’t think so, Bove persists. We’re attributing legal significance to a factual allegation. The factual allegation is that Trump caused the records to be removed. There’s not a factual dispute about that. There’s a legal argument about the significance of that removal. We attribute the same significance that President Clinton got the benefit of in Judicial Watch.

Judge Cannon wants to get to the statutory text. In your understanding, she continues, who is the officer “entitled to receive” the documents here?

I don’t think that’s alleged, Bove responds. That’s one of the issues. The concept, at a minimum, is ambiguous. Where it’s a former president with personal records at his residence, who is entitled to receive those records? “Entitled to” is unconstitutionally ambiguous.

Judge Cannon asks why.

Because there’s no definition of any kind, Bove responds. In United States v. Rosen, the court looked to Executive Order 13526 for guidance. (That’s the executive order that defined how classified information was to be handled throughout the relevant time period.) But that executive order does not apply to personal records of a president. Bove cites Section 6(hh) of the executive order. (That section defines the “records” covered by the order to include “agency” and presidential” records. It is silent about a president’s “personal” papers.) No one is “entitled to receive” those records, Bove asserts.

That calls for a factual finding that these are personal records, Judge Cannon insists.

We respectfully disagree, Bove pushes on. It’s a legal inference under the PRA. The government should be estopped from arguing anything different than it did in Judicial Watch with President Clinton. Nobody thought about taking back records from Clinton. The Justice Department was supportive of that view and so was NARA. 

Is it uncontested that Clinton’s tapes contained classified information? Judge Cannon asks.

I believe so, says Bove. It could not be reasonably disputed that those tapes contained discussions with foreign dignitaries and military advisers. That could not be done in a reasonable way without containing classified information. Nobody there was saying, “Oh, there’s an Executive Order applicable here.”

Bove acknowledges that his argument has some overlap with Trump’s separate motion to dismiss for selective prosecution, which is not on the agenda today. But he says that vagueness is the more salient consideration. He adds that “entitled to receive” is just one of the three clauses that make this case constitutionally infirm.

Now Bove launches a separate argument. To the extent that the government wants to give more precise meaning to Section 793 by referring to the provisions of Executive Order 13526, he says, that’s inappropriate because Section 793 does not authorize any sort of “rulemaking” to govern its enforcement. Furthermore, the executive order is vague in its own right. That vagueness leads to arbitrary enforcement—and that’s exactly what happened here, he asserts.

Judge Cannon asks what his concerns are about the executive order.  

There’s no delegation of authority from Congress in 793(e) to promulgate regulations to add content to its terms, Bove says. In 1917 (when the predecessor provision of 793(e) was first passed), President Woodrow Wilson proposed legislation that would have included a delegation of rulemaking authority. But Congress declined.

Then, by the time Congress enacted the Espionage Act of 1950 (which further tweaked the language of the current Section 793(e)), it knew about the Supreme Court’s ruling in Gorin v. United States (in 1941). There, the Court expressed concerns about the clarity of the statute’s terms, Bove says. (It upheld them, however.) Nevertheless, Congress failed to take heed, Bove continues, and still failed to enact any rulemaking delegation. When Congress chooses to do something like that, Bove says, an Article III court’s obligation is to strike the statute and say, “Congress, get it right!”

Judge Cannon asks Bove to address another subsection of the executive order—the one that defines “need to know.” (To be authorized to view classified information, one ordinarily must have a “need to know.”)

Bove asserts that the term is completely standardless. If the Justice Department says, “We say they need to know, then they need to know. If we say they don’t need to know, then they don’t need to know.” It’s extremely problematic, Bove argues. 

Now Judge Cannon changes direction. She asks a series of questions that seem to relate more to Trump’s motion to dismiss for selective or vindictive prosecution than to the vagueness issue, though the issues do overlap.

Judge Cannon tells Bove that, as she understands the government’s theory, on Jan. 20, 2021, when Trump left office, he lost authorization to possess classified documents. So on Jan. 21, 2021—the next day—is the alleged crime complete? she asks. All three elements are allegedly met, she continues. Willful removal. The documents have markings suggesting they’re related to national defense. There’s no authorization to possess them because the presidency has ended. If the crime is complete one day later, any other former official who possesses classified material the day after he leaves office is running afoul of this criminal provision, correct?

In your honor’s description, yes, responds Bove.

Judge Cannon repeats the point. Assume there are markings relating to national defense on documents. Any former official who loses that authority to possess them—one day later the crime is complete?

If you assume that the possession is unauthorized, Bove answers.

Though no one’s disagreeing with her, Judge Cannon then repeats her point a third time. The theory they’re using in the indictment, she says, is that he was authorized and then became unauthorized. The documents continue in his possession. So the crime is complete?

I agree that’s the theory of the indictment, Bove says.

So clearly other officials would run afoul of this law, Judge Cannon asserts.

Unquestionably, says Bove. We don’t want this day to be about selective prosecution, he continues, but the Clinton case, the Reagan diaries, and the Robert Hur report on President Biden’s handling of classified materials all show that the statute completely permits arbitrary enforcement. The government gets to make a decision based on selective criteria—here, political bias.

When does possession become unauthorized? Judge Cannon asks. I think it’s when the presidency ends. It has nothing to do with a demand for documents?

I think that’s the special counsel’s theory, says Bove. But they’re wrong. The reason the Section 793 counts should be dismissed is that the government, as a matter of law, cannot establish the lack of authorization. Look at Clinton, Ronald Reagan, and Joe Biden. Each has removed records from the White House permanently.

Bove now highlights a New York Times article Trump cited in Trump’s reply brief relating to the PRA. (The article, from Jan. 27, 2023, is entitled, “As Archives Leans on Ex-Presidents, Its Only Weapon Is ‘Please.’” It reports that NARA asked ex-presidents to scour their files for classified materials, but the agency has no power to force them to do so. Still, the article also quotes an expert who says, “If there are violations of law, they can be referred to the Justice Department for action.”)

Bove tells Judge Cannon that NARA sent a letter to George W. Bush’s people, who responded: We’re done here. You have nothing to say to us. (Bush’s chief of staff told the Times that he told NARA, “Thank you for your note. ... We understand its purpose and remain confident that no such materials are in our possession.”)

Judge Cannon changes the subject. What is your definition of “unauthorized”? she asks.

I don’t have one, says Bove. Bove says the government has cobbled one together from dictionary definitions.

That’s not inappropriate, the judge responds. Dictionaries can be used.

She also observes that no court has deemed that term, “unauthorized,” to be unconstitutionally vague.

Correct, Bove concedes. But multiple courts have deemed it problematic, he asserts.

Now, somewhat out of the blue, the judge starts talking about jury instructions. She alludes to the Eleventh Circuit’s “pattern jury instruction” for willfulness, which includes a “specific intent to violate a legal duty.” What law is being breached in this case? she asks.

That’s exactly the problem, judge, Bove responds. It refers the jury back to the ambiguous terms of the executive order and says, “Do your best.”

Judge Cannon now turns to the criminal referral NARA made to the Department of Justice. Has NARA ever issued a criminal referral outside the context of these documents?

Maybe in other situations, Bove says. But efforts to recover documents from a president are one of a kind. In light of NARA’s history—Judicial Watch, the Reagan diaries, Biden—there was no reasonable basis to believe there had been any crime. Our position is that the referral was unlawful agency action.

Now Cannon turns to jury instructions again. Let’s say I deny your motion, she says. What would the jury instructions be for “unauthorized”?

Bove says they would absolutely have to include language from the Presidential Records Act, discussing Trump’s designation of the records as personal.

Judge Cannon asks him to respond to the special counsel’s argument that Trump’s possession was unauthorized because he lacked security clearance or a “need to know.”

But what does that mean? Bove protests.

It’s in the executive order that is applicable to former presidents, Judge Cannon responds.

The phrase “need to know” is in the executive order, Bove agrees. But courts can’t save a vague statute by looking at a vague phrase in an executive order. 

Does the executive order speak to termination of clearances and suspensions of clearance? Judge Cannon asks.

Bove doesn’t know off the top of his head. He adds that there’s also confusion within the agencies about what constitutes national defense information (NDI).

But there’s been a fair amount of litigation on NDI, says Judge Cannon. That phrase has the most case-law support. It’s hard to say that that phrase, in and of itself, is unconstitutionally vague.

I can’t argue with your honor’s characterization, says Bove. But I don’t think the “closely held” element mitigates our concern. (To prevent the term “national defense information” from being too vague, courts have imposed a judicial gloss on the term, requiring that such information be “closely held.”) Some courts have taken this phrase “national defense” and bent it to include almost everything. If it’s presented to the president, it’s NDI.

Judge Cannon now asks Bove to address several discovery disputes before asking to hear from the government. 

It’s Jay Bratt’s turn at the dais.

First, Bratt explains, I’d like to present an overview of the government’s position. Then I’ll answer any questions the court may have.

The former president’s as-applied claim is no different from many others that have been unsuccessful, Bratt asserts. 

Judge Cannon interrupts. Her first question is the same one she asked Bove: Is the motion premature because it relies on facts outside the indictment?

It’s not only premature as to the PRA matter, Bratt says—alluding to the claim that Trump designated records as personal—but it never happened; Trump never, in fact, designated any of the records as personal. The court can rule, however, as to the vagueness of the three prongs of Section 793.

With respect to the claim that Trump ever designated records as personal, Bratt begins reading from paragraph 35 of the superseding indictment. This relates, he explains, to a meeting Trump had at his Bedminster club in July 2021. Trump was speaking to, among others, a publisher and some staffers and waving a document in front of them:

STAFFER: I don't know, we'll, we'll have to see. Yeah, we'll have to try to—

TRUMP: Declassify it.

STAFFER: —figure out a-yeah.

TRUMP: See as president I could have declassified it. 

STAFFER: Yeah. [Laughter]

TRUMP: Now I cant, you know, but this is still a secret. 

Bratt stresses: He doesn’t say, “I can show you this because I designated it as personal.” He’s saying they are presidential records and remain classified.

Bratt says that his colleague David Harbach will speak to the PRA issues in greater depth later on. But our position on the PRA, he continues, reinforces that Trump knew this was illegal. The clarity of the personal vs. presidential distinction undermines any claim that he was not on notice. It’s a black and white definition.

To underline his point, Bratt reads the pertinent definitions from the PRA.  Presidential records are “documentary materials, or any reasonably segregable portion thereof, created or received by the president” or his staff “in the course of conducting activities which relate to or have an effect upon the carrying out of the constitutional, statutory, or official or ceremonial duties of the President.” Personal records, by contrast, are documents “of a purely private or nonpublic character which do not relate to or have an effect upon the carrying out of the constitutional, statutory, or other official or ceremonial duties of the President.”

It would do violence to the text, Bratt continues, to say that a president can, by fiat, make presidential documents a personal record.

Judge Cannon interrupts. I appreciate the argument, but I’m trying to keep the analyses more organized here, so root your argument in “vagueness” questions.

Bratt explains that he’s actually trying to address the fair notice issue, which is relevant to the vagueness motion. The PRA, rather than supporting Trump’s claim, actually reinforces that Trump was on notice that he could not do what he did.

Judge Cannon suggests that maybe Trump was not on notice. No other former executive or vice president has ever been faced with exposure to criminal liability for retaining classified documents, she asserts.

None has been charged, Bratt says, correcting her. There have been referrals from NARA as to President Biden and Vice President Mike Pence.

But those post-dated this, Cannon parries. Correct?

Yes, Bratt concedes.

So, Judge Cannon continues, maybe Trump wouldn’t have foreseen a realistic likelihood that he’d be looking at a 793(e) indictment.

Then Judge Cannon turns to the same line of questions she asked Bove, which veer toward the selective and vindictive prosecution issues.  

“When was the crime complete?” she asks.  

Willful retention is an ongoing offense, Bratt responds.

But, conceivably, Trump could’ve been charged on Jan. 31, 2021? Judge Cannon asks.


If that’s the theory, the judge continues, wouldn’t that have been applicable to other officials who possessed classified information post-presidency. 

With willfulness it gets harder, Bratt explains. The Hur report notes that the big part of the question is whether it was willful. Whether they could prove willfulness. I don’t have insight with respect to the Pence inquiry. 

But based on simple willfulness, Judge Cannon continues, you could have that on Jan. 31, correct? Unauthorized possession. All elements satisfied. Crime complete.

Correct, Bratt says.

Is there no tension with that and the absence of any prosecution of a president? she asks.  

Bratt responds that that fact might have importance if the indictment had been returned on Jan. 31. But it was returned only after the history of everything that happened. (It was returned June 8, 2023.)

Judge Cannon then asks about the jury instruction for “willfulness.”

Bratt says that Bryan v. United States requires the government to prove that defendants acted with knowledge that it’s illegal or intent to do something the law forbids. The defendant does not need to know the specific law. He just has to know it’s illegal.

Judge Cannon asks Bratt to address whether the phrase “entitled to receive” in Section 793(e) is vague as applied.

Bratt says that that language is not really applicable to this case. He gives an example. Suppose former President Trump realized he had to give these documents back but, instead of giving them to the proper authorities, gave them to the leader of the Republican Party in the House. That’s not an official entitled to receive them. That’s how it would play out, he says.

Bratt refers Judge Cannon to footnote 6 of the government’s opposition brief. (There the government argues that “Trump has offered no theory ... that alleged vagueness regarding who was entitled to receive the documents is responsible for his conduct; he certainly cannot claim that he attempted to return the documents but is being charged because he returned them to the wrong individual.”)

But Judge Cannon wants to know who would have been “entitled to receive” these documents.

NARA would’ve been one, Bratt says. Or the FBI, post-grand jury.

Judge Cannon asks how a president’s clearance to view classified materials is canceled.

The president never receives a clearance, Bratt explains. So clearance is not canceled.

Is there a statute that nullifies the previous clearance? she asks.

There never was a preexisting clearance, Bratt repeats. Section 4 of the executive order addresses what a former president can do. It actually makes a former president unique. There is language delimiting what he can and can’t do.

The statute doesn’t refer to the executive order, interjects Judge Cannon. It doesn’t authorize rulemaking. How would Trump know that he has to look up the order and which one?

There is a law that makes it illegal, Bratt responds. It’s informed by the executive order. It’s out there for anybody to see. That’s consistent with due process decisions about fair notice. 

Is there too much addition? Judge Cannon asks, referring to the fact that the language of the statute itself can’t be understood without external references and glosses. There’s the “closely held” gloss added by courts. Then you add the executive order and its language and requirements. Does there reach a point where there is too much judicial gloss?

No, says Bratt, citing a series of cases, including Skilling v. United States, in which courts have narrowed the construction of statutes in order to avoid striking them down for vagueness. 

Judge Cannon asks Bratt to walk her through the executive order’s standards for having access to classified information.

Bratt refers her first to Section 4.4(a). This section says that the usual requirement that someone have a “need to know,” referenced in 4.1(a)(3), “may be waived” for those who “served as president or vice president.” But that’s only so, under 4.4(b), if the requirement is waived in writing by “an agency head or senior agency official of the originating agency” and the waiver meets criteria laid out in subsections 4.4(b)(1), (2) or (3). Those include ensuring that the “information is safeguarded.”

Judge Cannon asks about the phrase “need to know.”

Those words are susceptible to dictionary definitions, Bratt says. “Need” means some justification. It’s not vague.

These analyses of vagueness, Cannon comments, lead me to wonder how we will define “unauthorized” for a jury. Will it be hard to reach a consensus?  

We will look at other 793 cases, Bratt says.

Judge Cannon comments that “unauthorized” would have to be defined through the executive order. Then she wonders about the phrase “entitled to receive.”   

Bratt says, again, that that will drop out.

Why does it drop out? she asks.

Here there was no return of materials, Bratt responds. You don’t get into a question of who was entitled to receive it if the material was not returned to anyone.

Do you agree he became unauthorized the moment the presidency ended? Cannon asks.  

And had removed documents, yes, he says.    

So did it stem from absence of clearance alone? Judge Cannon asks.

He certainly doesn’t have clearance.

The clearance vanishes? she asks. 

Lawful access ends, Bratt clarifies. There was not a clearance process to begin with.

No need for a demand for return? she asks.

That’s correct, says Bratt.

Are there any other cases in which we have authority-existed-and-then-authority-was-lost scenarios? Cannon asks.

We have cases where people carry classified documents with them after employment ends and no longer have clearance, yes, Bratt says. 

Government employees had authority but exceeded it? she asks.

Yes, Bratt responds. But even when government employees have authority, they can’t keep classified information at home. I’ve had a Q clearance for 50 years, but I can’t take classified material home and put it in my basement.

Certainly, certainly, Cannon says. Any other case of “lack of authority” without a statutory definition? Beyond 793? “Unauthorized” when there’s no statutory definition? Where there’s an executive order not in the statute? Where we’re faced with no statutory term?

We didn’t look for those, says Bratt. We could do an analysis. 

After a detour about discovery issues, Judge Cannon asks Bratt to turn to the intent element.

It’s the Bryan standard, he responds. It’s not a heightened mens rea.

In the Eleventh Circuit, is “bad faith” used in the jury instruction?

I don’t have it before me, he responds. 

Do you have anything further on willfulness? she asks.

You stack everything up, he says. The notice the former president had. The admissions in the indictment. (The indictment includes statements Trump made while president discussing the importance of safeguarding classified information.)   

What about fair notice? Cannon asks.

He was aware it was illegal to mishandle classified information, Bratt says.

But were those warnings geared toward presidents or vice presidents? she queries. If you’re a former executive trying to foresee liability— 

Putting aside the president and vice president, Bratt says, there are prosecutions of high-level officials.

But no presidents or vice presidents, Cannon stresses.

That’s not part of the standard for fair notice, Bratt parries.

If you see a pattern historically, does that factor in? Cannon asks.

No, says Bratt. Maybe it goes to willfulness, but not to vagueness.

Because the clauses and judicial glosses provide adequate notice? Cannon asks.

And avoid arbitrary enforcement, Bratt adds.

Speak to that, Judge Cannon prods him. There’s a suggestion in the reply brief that arbitrary enforcement features in this case.

They argue that it’s political, Bratt observes. But selective or vindictive prosecution is a whole different —

You don’t see any relationship between vagueness and arbitrary enforcement? Cannon presses.

Fair notice prevents arbitrary or capricious enforcement, he says. That spurs Bratt to make another point. There’s one other as-applied factor, he says. They brush it off in their reply, but it’s the nature of these documents. United States v. Hitselberger talks about it. (There the court wrote: “Mr. Hitselberger’s vagueness challenge is particularly unpersuasive in light of the alleged content of the documents he retained. The documents contained highly sensitive information .... These documents were marked as SECRET.”) What the defendants would’ve seen. Documents marked “sensitive compartmented information.” Special access programs.

Given the sensitivity, Cannon asks, does it matter that there’s no criminal mechanism in the PRA itself?

Not at all, Bratt says. They’re entirely separate statutes.

Does it matter that there’s some authority suggesting that presidential decisions designating documents as personal are effectively unreviewable? she asks. Putting yourself in the mind of an executive trying to foresee criminality: No president or vice president has ever been charged; there’s no mechanism in the PRA; the suggestions of unfettered discretion. It would not have been reasonably foreseeable. 

That goes beyond Fifth Amendment due process analysis, Bratt replies. That’s a willfulness argument.

No NDA (non-disclosure agreement) was signed by the former president?

That’s correct, avers Bratt.

Walk me through the set of judicial glosses that have been cobbled together to avoid vagueness, says Judge Cannon. At least “closely held”— 

Respectfully, I take issue with “cobbled together,” says Bratt.

The use of the executive order for “entitled to receive” and “unauthorized,” she continues. Without the executive order, would you have a vagueness problem?

I don’t think so, Bratt says.

Then she returns to a question about jury instructions. The clause used in United States v. Morison about “potential for harm,” she says—does that need to be included? (In Morison, the district judge had instructed that to be national defense information the material would have to be “potentially damaging to the United States or might be useful to an enemy of the United States.”)

Bratt has an odd response: I’ll give you something at a later day, he says. I’m reluctant to commit today. But he adds that unauthorized mishandling has potential for harm.

Now Judge Cannon asks if the Clinton tapes, involved in the Judicial Watch case, contained classified information.

We do not concede, Bratt says, that there was classified information in the Clinton tapes. Also, books go through classification review.

Judge Cannon turns to the Reagan diaries. There’s no dispute they involved classified info?

Right, Bratt concedes.

And that was post-enactment of the PRA? she asks.

Yes, he was the first president to which the PRA applies.

That’s all Judge Cannon has for Bratt. She invites Bove to the lectern for rebuttal.

Bove disputes Bratt’s claim that the “entitlement” clause is irrelevant to this case. The government is saying “ignore that,” he recounts, because Trump did not return the documents. But that flips fair notice on its head, he says. What matters is what it looks like to Trump on a prospective basis. 

Next, Bove turns to the authorization clause. He says Bratt’s discussion devolves to: If there was clearance, then it’s authorized. If there’s no clearance, it’s not authorized.  

But he argues that that’s inconsistent with a long history of former officials being granted clearances after their terms end. In fact, he adds, even before Trump took office, when he was president-elect, he was treated as if he had clearance. A government witness said that Trump received briefings at Trump Tower. 

Declaring a statute unconstitutionally vague is an extraordinary step, Judge Cannon says. I have to consider the glosses one by one.

That’s not what United States v. Davis said, Bove parries. Most of the case law the government relies upon predates the retrenchment in Davis. (Trump’s counsel are arguing that, in a series of recent cases, including Davis, the Supreme Court has adopted a less tolerant view than previously toward the practice of narrowing broad statutes with judicial glosses in order to avoid striking them down for vagueness.) 

Our position, he says, is that Section 793(e), as applied here, must be struck under Davis. Article III courts cannot rewrite statutes.

There’s a pattern of doing that with the Espionage Act, Judge Cannon says.

Under Davis, Bove asserts, a vague law is not a law at all. It’s void on the day it passed.

I don’t know that that’s fair, Judge Cannon says.

Bove quotes from Davis: “When Congress passes a vague law, the role of courts under our Constitution is not to fashion a new, clearer law to take its place, but to treat the law as a nullity and invite Congress to try again.” Respectfully, Bove says, I think that is the message of Davis

It can’t be, responds Judge Cannon, that Davis eliminates the ability to make reasonable interpretations to save statutes from unconstitutionality.

A few moments later, Judge Cannon concludes the hearing on the first motion. It’s about 12:15 p.m. and Judge Cannon tells everyone to be back an hour later for the hearing relating to the Presidential Records Act.

The afternoon session resumes on time. Trump’s motion to dismiss based on the PRA will be argued by his lead counsel, Todd Blanche, who heads to the dais.

I’m going to repeat a little bit, he tells Judge Cannon, because there’s some overlap between the two motions. The statute charged requires “unauthorized retention,” and if the PRA authorizes him to retain the material—that’s fatal and the charges can be dismissed. 

Is any factual development needed for your motion? Judge Cannon asks. (It’s essentially the same first question she asked Bove and Bratt.)

No, Blanche says.

How can that be right? she asks. It depends on the conclusion that there was a designation of materials as “personal.”  

Our motion relies on no materials outside the indictment, Blanche asserts. It relies on law outside indictment. We’re looking at the face of the statute. The materials at Mar-a-Lago were personal records.

There’s a dispute about that, Judge Cannon protests.

The law is crystal clear going back to when the law passed in the 1970s, he says. Presidents since George Washington have taken materials out of the White House solely at their discretion. The PRA was passed in the late 1970s. It didn’t touch that except to say that, during his administration, the president can keep records as he sees fit. Those that he determines are presidential should be delivered to NARA. Others are personal and aren’t. Nothing gives any power to NARA to question a president’s determination of whether a particular document is presidential or personal, and there’s case law to that effect. That’s Judicial Watch.

Judge Cannon wants to know if granting Trump’s motion would require her to conclude that the PRA repealed the Espionage Act?

Absolutely not, Blanche says. The indictment says the president caused boxes to be sent to Mar-a-Lago when he was president. He had original classification authority. He designated these as personal. That’s the way NARA has handled every presidency since the PRA was passed. The only time the government has taken a different position is with President Trump. That’s Judicial Watch. Clinton didn’t even have to go to court.

He wasn’t a named party, Judge Cannon points out.

Correct, Blanche says. That’s because NARA thought there’s no way we, NARA, should ever ask Clinton about what he decided. NARA was thinking: How could we possibly get records from the president. Seizure would be extraordinarily contrary to the PRA’s express terms.

Think about the position NARA took then, he continues. President Clinton didn’t send the tapes to the Archives, so he must have sent them to his house because he deemed them to be personal.

All that might be right, Judge Cannon concedes. You have some forceful arguments referencing Judicial Watch. But to get the relief you’re seeking now would require ruling that the PRA, as applied to this case at least, eliminates the Espionage Act altogether. That’s where your argument falters.

When the PRA passed, Congress was well aware of the rules that existed, says Blanche. But the law said nothing about classified records. Congress made plain what the president in his authority could do. If they’re not presidential records, they’re either copies of records or personal.

To prove counts 1 through 32, the government has to prove unauthorized possession, Blanche continues. There’s no basis in law for that.

Prosecutors say they can borrow definitions from the executive order and dictionary definitions, Judge Cannon interjects. They don’t need to resort to the PRA. 

That’s exactly what they say, says Blanche, because if they focused on the PRA, the indictment would be dismissed.

Your arguments might have some force, says Judge Cannon, but it’s difficult to see how this gets you to dismissal. What gets you to inherent incompatibility between the PRA and Section 793?

There’s certainly tension, Blanche replies. The court should look at what the agency and the Justice Department have done since passage. That’s instructive. Think about President Reagan—the first president bound by the PRA. He had classified information in his diary. There’s no dispute about that.

I don’t think there’s a dispute about Clinton’s case either, Blanche adds. NARA never even considered saying, yes, they might be personal records but we have this Espionage Act, too. That’s instructive.

It might be instructive, Judge Cannon responds, but is it worthy of dismissing the indictment?

We’re bleeding into the selective and vindictive prosecution issue, Blanche says, but it’s helpful to look at what NARA did here. You asked: Was the crime complete the day after? The Justice Department never opened a criminal investigation before Trump. Now there’ve been two more, but both were closed.

Why did they wait till last summer to indict? Blanche asks. The reason why in our view—aside from the fact that it’s politically motivated—goes to another motion. There’s no precedent for what they did here. The Justice Department itself has taken the position repeatedly that discretion lies with the president. Under the PRA, by Trump not transferring records to NARA, he designated them as personal. The reason why Congress put all that discretion in the president was the hope that the president would donate materials back to Archives—which is exactly what happened here when several boxes were sent back to Archives in January 2022.

Judge Cannon comments: Unfettered classification authority with no possibility of judicial review. There’s some indication of that in case law. But classification guidelines are reviewable.  

Administrative law provides review for guidelines, Blanche agrees. But the PRA doesn’t.

Their argument is, says Cannon, that even if they’re personal, that wouldn’t brush aside a 793(e) charge, which doesn’t hang on that designation. 

Now Blanche advises the judge to look again at the New York Times article Bove mentioned during the morning session. He continues: NARA has no authority to question the designation of records by the president. The current administration agrees, he adds. That’s the position it took in the Hur investigation. 

But that argument didn’t go over very well, Judge Cannon comments.  

Well, Hur didn’t accept it, Blanche concedes, but no charges were brought. This has never happened before. NARA has never done a criminal referral before for something like that. 

What about the American Historical Association v. Peterson case, Judge Cannon asks. (In that case, a group of historians, librarians, researchers, and journalists challenged an agreement President George H.W. Bush had reached with the then-archivist to give Bush exclusive control of electronic presidential records during his term. A federal district judge reviewed Bush’s action and enjoined enforcement of the agreement as violative of the PRA.)

Different facts, says Blanche, which permitted limited review.

What limited review is possible? asks Judge Cannon.

Nothing that applies here, says Blanche. There is potentially review over whether a document is an agency record subject to the Freedom of Information Act. Here, the facts are simple. While president, Trump took records to his home like every president before him. NARA never questioned that until Trump. It said it did not have authority to question it. For the first time, with Trump, NARA said we’re going to make a criminal referral.

NARA didn’t initiate this case, Judge Cannon observes. The Justice Department did. I don’t see how that forecloses the department from bringing a charge.

Fair, comments Blanche, but if the referral was completely wrong and unlawful—

Walk me through that, says the judge. Because NARA never did this before, that creates a taint that shuts everything else down? 

No, says Blanche. NARA knew, based on a body of law, that it had no authority to question Trump’s determination that records were personal.

Cannon observes that the special counsel points to the Inspector General Act ( 5 U.S.C. § 404(d)). It says that this agency, like any other, can refer cases to the Justice Department.

NARA did not have suspicion of a violation of federal law, Blanche protests. It’s a sham referral. Nothing could be done. Certainly not seizure.

Certainly seizure from a former president was extraordinary, Judge Cannon agrees. 

Blanche says again that the discussion is edging into an area where the defense’s motion for dismissal based on selective and vindictive prosecution may be the more appropriate forum. But he insists that when you look at how Reagan and Clinton were treated, NARA’s decisions are unequivocal. Unless you’re Trump, NARA isn’t going to do anything.

Aren’t you overstating redressability? Judge Cannon asks. Are you reading more into Judicial Watch than is warranted?

Blanche alludes to the fact that, in that case, Clinton had kept the tapes in his socks drawer. NARA says there’s nothing we can do about this. The records are very similar.

Was there any briefing in Judicial Watch that would shed light on whether those tapes contained classified information? the judge asks.

They were personal, Blanche says, so Clinton got to keep them. They contained one side of his conversations with foreign leaders. Discussions of the war in Afghanistan. It’s hard to believe they didn’t include classified information. The Reagan diaries also contained confirmed classified information, he adds.

Judge Cannon pushes back. The special counsel says, yes, but those were diaries. That’s more fair to treat as personal compared with what is charged here—which is to say government records actually marked as classified.

Blanche responds: The special counsel can’t say, okay, there’s Espionage Act violations, but it’s okay because it’s a diary. That’s not logical. The special counsel can’t say, post-Trump, we’re allowed to go search former presidents’ houses. These are inconsistencies. They can’t have it both ways.

Judge Cannon now asks to hear from Assistant Special Counsel David Harbach, who heads to the lectern.

Harbach wants to make three points up front, he says.

As a threshold matter, he continues, they’re asking you to find, as matter of law, that because Trump took these highly classified documents—about nuclear capabilities, vulnerabilities to military attack, plans for responding to attacks—that because he took them, they are necessarily “personal,” and because they are necessarily personal he could retain them. So he wants the indictment dismissed.

First, the documents charged in indictment are not personal records. Period. They are not. Nowhere close. Mr. Bratt read you the definition. The only possible inference from the allegations is that they were presidential, not personal.

You asked, Harbach notes, if there is a fact issue. Both sides agree that the facts are uncontested. He took documents. Knowingly took those. Never in fact designated them as personal. Never wrote on them. Never told anyone.

I don’t believe that’s an admission of guilt, Judge Cannon protests. He moved them, and there’s an inference backed into that based on what a counselor in Judicial Watch said.

In fact, that is their contention, Harbach agrees. They don’t allege that the documents are in fact personal. They rely on a presumption as articulated in a single line from the transcript in a totally unrelated case. You should not treat that as remotely precedential.

Judge Cannon interjects that the Judicial Watch decision does contain language suggesting that there’s no way to evaluate or second-guess a president’s decision. That the PRA set up an honor system. That it lacks any real enforcement mechanism.

Harbach says there’s language in all the cases that have been discussed today that can be useful to both sides. Several of them, he contends, say that guidelines governing compliance with the PRA are reviewable. 

So does that mean the court can say this was personal, this is presidential? she asks.

Maybe, he responds. 

So courts could take a document and say, I disagree, this is clearly a presidential record? she asks. (She sounds skeptical.)

I think maybe it could, says Harbach.

They’ve never done that so far with previous presidents, Judge Cannon says.   

The existence of that apparatus necessarily contemplates judicial review, Harbach insists. The defendant is saying that just by virtue of my taking them they must be deemed personal.

The Judicial Watch judge didn’t rule on judicial review, Judge Cannon comments, but when she gets to redressability—it’s the same.

I think I know what you mean, Harbach says. But whatever a private citizen can do to force NARA to act has nothing to do with a criminal indictment brought by the Justice Department.

Here we’re not talking about a president trying to write a book, Harbach continues. You’ve got NARA seeking to carry out its important function.  Whatever discretion a different Congress gave to the executive in the PRA should not be read as a carte blanche for the president to improperly classify records to thwart the Espionage Act. It would border on the absurd to let the PRA gut the Espionage Act.

Can you address the implied repeal notion? Judge Cannon asks him. And the notion that the PRA now prevents the executive from bringing criminal charges?

The idea that NARA’s power to recover documents is limited to civil enforcement does not suggest, much less imply, that the agency is powerless to call the Justice Department and report a crime, Harbach says.

The trigger was: It found a boatload of classified documents. It wasn’t trying to get documents back. They were saying, hey, we found classified documents. We need to let you go after them.

NARA is not just authorized to make a referral, adds Harbach. It’s obliged to. He cites 32 CFR Section 2001.48 and reads from it:

(a) ... Any person who has knowledge that classified information has been or may have been lost, possibly compromised or disclosed to an unauthorized person(s) shall immediately report the circumstances to an official designated for this purpose. ...

(e) ... Whenever a criminal violation appears to have occurred and a criminal prosecution is contemplated, agency heads shall use established procedures to ensure coordination with:

(1)        The Department of Justice ...

Now Judge Cannon turns to whether, even if she denies the motion to dismiss, Trump might be entitled effectively to raise his PRA claims at trial, arguing that he did not “willfully” retain documents because he thought he had properly designated them as “personal” under the PRA. She alludes to a footnote in the government opposition that concedes such a possibility. (The footnote says, “At trial, Trump may offer a defense that he did not act willfully because he in fact designated the documents as personal and in fact mistakenly believed that the PRA provided him with authorization to keep and withhold classified records from NARA and the grand jury. ... Any such factual defense regarding his mens rea would, of course, require as-yet-unseen evidence to support it[.]”)  Judge Cannon says that she can see this raising its head at the jury instructions phase—not with respect to dismissal, but with respect to a claimed trial defense.

Maybe, Harbach says. But he says there would be a lengthy discussion about that at that stage.

As for the motion to dismiss, Harbach says, even assuming the documents were “personal,” he says, that has no bearing on whether the person was authorized. The authorization that matters is the executive order, not the PRA. How do you know that? The PRA says zero—zip—about classified information.

What inference do we draw from congressional silence? he asks, rhetorically. The court should not infer from silence an intention to disturb the framework for handling classified information in place at the time it was passed.

There was a lot of discussion, Harbach continues, between your honor and Mr. Blanche about whether the PRA trumps the Espionage Act. It’s not a question that needs to be asked. There’s no tension between them. There is no need to read the PRA to intrude on the executive branch’s function. Just because something is personal, excluded from the PRA, doesn’t guarantee that there are no other legal restraints on it.

Judge Cannon asks him to address the Reagan diaries.

Segregability matters, says Harbach. A segregable part of a personal record might be presidential. In the case of a diary, pieces and parts might be presidential. Why wasn’t he prosecuted? A lot of factors go into that decision. That was true of all of these cases, he says, referring to Clinton, Reagan, and Biden.

Do you have a view on whether the Clinton tapes had classified info in them? Judge Cannon asks.

We do not know, Harbach says.

She presses him: Looking at the descriptions—contemporaneous descriptions of ongoing world affairs, military exercises—why wouldn’t that quite clearly verge into sensitive territory?

I suppose it might, he concedes. That’s only one piece of the puzzle in deciding whether to launch a criminal case. 

Before finishing, Harbach asks if Judge Cannon wants him to address the notion of estoppel. She does. (This relates to the government attorney’s oral comment at the Judicial Watch hearing that that “President Clinton ... presumably classified the tapes as personal records by not transferring them to the [A]rchives at the conclusion of his administration.” Trump argues that the special counsel’s office should be “estopped” from arguing here that Trump’s removal of classified documents did not amount to a designation, under the PRA, that they were personal.)

Harbach says that such estoppel in the Eleventh Circuit is governed by the Slater v. U.S. Steel Corp., which uses a two-part test. First, Harbach says, a party must take inconsistent positions under oath and, second, the inconsistent positions must be “calculated to make a mockery of the judicial system.” So the mental state is crucial.

By contrast, Harbach argues, in Judicial Watch, a Justice Department attorney made an off-hand remark at oral argument in an entirely different case.  

Harbach also wants to respond to Blanche’s comment that the Biden administration, in defending against the Hur investigation, cited the Judicial Watch case in its defense.

Harbach says, facetiously, that this fact is exhibit 110 showing that we are not puppets or appendages of the Biden administration. (That claim underpins Trump’s selective and vindictive prosecution arguments.) Hur had the same view of “personal” and “unauthorized” as we do.

Harbach is done, and Blanche returns to the lectern for rebuttal.

Blanche stresses that NARA’s interpretation of the PRA in this case, and particularly its criminal referral, were unique. Something it had never done before. 

Judge Cannon parries that NARA’s not the one bringing the case. The referral is a red herring, she says. 

It’s not a red herring, Blanche protests. The charge is “unauthorized” retention. Trump had authority.

Judge Cannon returns to the very first question she asked each attorney today, which relates to the fact that Trump’s dismissal motions both advance a disputed fact. 

Your argument hangs on “it is personal,” she says, which is not in the indictment. 

Blanche returns to Judicial Watch, and the inference he wants her to draw: that if Trump didn’t give the documents to NARA, he can only have been designating them as personal. And with that, Blanche is done.

Thank you for your time and attention, says Judge Cannon to all the attorneys. It’s been very worthwhile. The court is now in recess.

Note: A little over two hours after the hearing, Cannon issued a brief order denying “without prejudice” Trump’s motion to dismiss the 793(e) counts based on vagueness, while suggesting that the issues could be raised again “in connection with jury-instruction briefing and/or other appropriate motions.”

Four days later, she issued an order asking the parties, by April 2, to  “engage with” or “offer alternative draft text” to two possible jury instructions relating to the PRA issues. They read:

(a) In a prosecution of a former president for allegedly retaining documents in violation of 18 U.S.C. § 793(e), a jury is permitted to examine a record retained by a former president in his/her personal possession at the end of his/her presidency and make a factual finding as to whether the government has proven beyond a reasonable doubt that it is personal or presidential using the definitions set forth in the Presidential Records Act (PRA).

(b) A president has sole authority under the PRA to categorize records as personal or presidential during his/her presidency. Neither a court nor a jury is permitted to make or review such a categorization decision. Although there is no formal means in the PRA by which a president is to make that categorization, an outgoing president’s decision to exclude what he/she considers to be personal records from presidential records transmitted to the National Archives and Records Administration constitutes a president’s categorization of those records as personal under the PRA.

Roger Parloff is a journalist based in Washington, D.C. In recent years, he has regularly contributed to Yahoo Finance and Air Mail News, and has also been published in The New York Times, ProPublica, New York, and For 12 years, he was the main legal correspondent at Fortune Magazine. He is an attorney who no longer practices. He is a senior editor at Lawfare.

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