As lawyers continue to wrangle over trial dates in former President Donald Trump's classified documents mishandling case, attorney and Fox News contributor Leo Terrell opined over the weekend that a single motion from the defense team could be the death knell for Special Counsel Jack Smith's hopes of securing a conviction.
Terrell held forth on the topic during an appearance on Sunday's installment of Life, Liberty & Levin, and he was clear in his belief that the Presidential Records Act (PRA) renders the charges against Trump utterly baseless.
The PRA was passed by Congress in 1978, and starting with former President Ronald Reagan, served to control how official documents and records are to be handled by those privileged to serve as commander in chief.
According to the language of the Act, responsibility for “custody and management of incumbent presidential records” lies with the president.
As such, show host Mark Levin suggested that Trump's attorneys rely on precedent promulgated by Democrat Judge Amy Berman Jackson, who once blocked the compelled release of materials retained by former President Bill Clinton after he left office, citing the PRA in her decision.
In Terrell's opinion, if Trump's lawyers were to mount an argument based on the PRA, it would be “game over,” and he said that such a move is “the most important first motion President Trump's legal team could file.”
The longtime civil rights attorney and network commentator further opined that the act offers an effective exoneration of Trump's conduct with regard to the contested documents and suggested that Smith would struggle to come up with any way to counter that position.
“President Trump had the absolute right to declassify any and all documents in his custody, control and possession,” Terrell maintained. “There has been no response to that by the prosecution. I'll tell you why: Because they don't have one.”
Earlier suggestions from Trump's legal team and his surrogates that the PRA negates the fundamental premise of Smith's case have drawn criticism from the mainstream media as well as from former Attorney General Bill Barr, as The Hill recently noted.
The former AG characterized the PRA defense theory as “absurd” and declared that Trump was “absolutely”' misinterpreting the legislation.
“The whole purpose of the statute, the Presidential Records Act, was to stop presidents from taking official documents out of the White House,” Barr said. “It was passed after Watergate. That's the whole purpose of it. And therefore, it restricted what a president can take. It says it's purely private, that have nothing to do with the deliberations of government policy.”
Barr went on, “Obviously, these documents are not purely private, it's obvious. And they're not even now arguing that it's purely private. What they're saying is the president just has sweeping discretion to say they are, even though they squarely don't fall within the definition. It's an absurd argument.”
Terrell, however, is unmoved by such contentions, saying that pundits' refusal to acknowledge the protections afforded to Trump by the PRA are borne solely out of a desire to prevent the former president from returning to the White House. “The leading Republican candidate, in my opinion, the next president of this country, is trying to be derailed by the prosecution, by Joe Biden, by Merrick Garland, by Christopher Wray and the Democratic machine...and the left-wing media,” he added.
With clearly divergent opinions on the applicability of the PRA to Trump's retention of documents in existence among members of the media and former government officials, and even contained within prior legal precedent, it remains to be seen which reading of the statute will ultimately prevail and whether the former president's legal team takes Terrell's advice and formally pursues this line of attack.
