Last month, Donald Trump’s lawyers told him he was on the cusp of a federal indictment in the classified documents case. But the former president still wanted “my documents” and “my boxes” back, asking some of his lawyers if they could get them from the federal government, according to a source with direct knowledge of the matter and two other people briefed on it.
It’s one of many such conversations Trump has had over the past few months, the sources say. In these conversations, Trump also claimed it was “illegal” that he could no longer have the documents seized in the Mar-a-Lago raid. Those materials, Trump insisted, belonged to “me.” Trump has also asked if there are any other possible legal maneuvers or court filings they could try to accomplish this that they hadn’t thought of yet.
For much of his post-presidency, Trump has incorrectly insisted to various aides and confidants that the highly classified documents he continued to hoard were “mine.” In some of these conversations, according to the source with knowledge of the matter, Trump has also mentioned that he’ll get the documents back in 2025 — because he predicts he’ll be president again, and therefore regain unfettered access to the government’s most sensitive secrets.
Earlier this month, Trump was charged with 37 counts of willful retention of classified documents and obstruction of justice as part of Special Counsel Jack Smith’s probe. But Trump and his campaign have insisted that the Presidential Records Act — a law passed in the wake of Watergate to narrow presidents’ claims to official documents when they leave office — actually does the opposite.
Two sources familiar with the situation tell Rolling Stone that several lawyers — some retained by Trump and others politically aligned with him — have briefed Trump that he is, in their view, entitled to the return of government documents under an obscure part of the Presidential Records Act, specifically 44 USC 2205(3), which asserts that “Presidential records of a former President shall be available to such former President or the former President’s designated representative.”
But experts on classification rules disagree. “Whatever one might say about his Presidential Records Act argument, there’s no argument that it immunizes him from criminal prosecution under the Espionage Act,” Brian Greer, an attorney who served in the CIA’s office of general counsel from 2010 to 2018, tells Rolling Stone. Nor does the act allow a former president to defy a lawful court-ordered subpoena for documents and obstruct justice, as the special counsel alleges Trump did in the indictment, Greer adds.
Nonetheless, Trump remains enamored of the legal theory. “Whatever documents a president decides to take with him, he has the absolute right to take them,” Trump claimed last week, addressing the Faith and Freedom Coalition conference. “He has the absolute right to keep them, or he can give them back [to the government], if he wants…That’s the law, and it couldn’t be more clear.”
“TRUMP IS RIGHT! The Presidential Records Act Allows Presidents To Take Whatever Documents They Want” his campaign blasted out in an email to the media on Wednesday afternoon.
Trump is hardly alone in espousing this rather unorthodox legal theory. Within his own orbit of legal advisers, and among various MAGAfied advocacy organizations and conservative activists, there is a vast network of Trump allies willing to tell him what he wants to hear, and trying to prop up his corrupt legal fantasies — even if such arguments ultimately do not make it to a courtroom.
On Wednesday, an opinion piece from Judicial Watch, the conservative legal nonprofit close to Trump, argued in the Wall Street Journal that the classified documents taken by Trump weren’t “agency records” as defined by the Presidential Records Act and that “his decision to maintain the records can’t be second-guessed.”
Asked to comment on Wednesday, a Trump spokesperson did not weigh in on any specific details of Trump still wanting “my documents” back in his possession. Instead, the spokesperson said: “This is a Presidential Records Act issue, and it’s ridiculous that the government is trying this under the Espionage Act.”
In an interview with Fox News’s Bret Baier last week, Trump reiterated the claim that he has “every right to have those boxes” seized by the FBI. “This is purely a Presidential Records Act. This is not a criminal thing.”
Trump’s campaign to get the classified documents back from the government through the Presidential Records Act follows an earlier attempt to retrieve them, which ran aground following the intervention of a federal appeals court.
Trump and his legal team initially floated the possibility of retrieving classified documents seized by the FBI during the August 2022 FBI search warrant executed on Mar-a-Lago through a so-called Rule 41 motion. Under Rule 41(g) of federal criminal procedure, those “aggrieved by an unlawful search and seizure of property” can file a motion asking a judge to return property seized during an illegal search.
Shortly after the search, Trump’s attorneys asked Judge Aileen Cannon to appoint a special master to review the evidence seized in the August search for potential privilege issues. The attorneys asked that Cannon appoint a special master who would have a “fair-minded approach to providing defense counsel with information needed to support any Rule 41(g) filing,” in a sign that the legal team intended to seek the return of what they claimed was the former president’s property.
Cannon granted the motion and appointed Raymond Dearie, a former Foreign Intelligence Surveillance Court judge and chief judge of the Eastern District of New York to serve in the role. But the 11th Circuit Court of Appeals ultimately cut short the third party review following an appeal from prosecutors with the justices concluding that the move would “defy our nation’s foundational principle that our law applies ‘to all, without regard to numbers, wealth or rank.’ ”