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Former US Prosecutor Says Trump’s Presidential Records Act Defense May Not Work



On Tuesday, former Assistant U.S. Attorney Andrew C. McCarthy rejected claims that former President Donald Trump was allowed to retain the classified documents that were recovered from his home because of the Presidential Records Act.

McCarthy made his comments during an appearance on Fox News as Trump was being arraigned in a Miami courthouse. He disputed the idea that the classified documents Trump allegedly mishandled were his “personal records.”

“As far as the Presidential Records Act is concerned, I must say, I’m tempted to say that the argument is frivolous,” he said. “What President Trump is accused of hoarding down at Mar-a-Lago is not presidential records. These are agency reports. Their agency reports are not what the Presidential Records Act is directed at, it’s not even clear that they would count as presidential records.”

“But in terms of what he’s allowed to keep as personal records, there’s not a conceivable contention that the information that was down there is covered because what personal records under the Act are is things in the nature of diaries and journals and the like,” McCarthy explained. “This doesn’t come close to that, this is agency reporting. And on the Espionage Act, you know, the word ‘espionage’ doesn’t appear in any of the codified provision of the crimes that went into federal law as a result of the Espionage Act.”

He said that there are “various prongs” in the Espionage Act and that the one Trump has been charged with has nothing to do with spying. McCarthy claimed that it pertains to “government officials, who are trusted with national security information, who hold it in unauthorized circumstances, that is in a place where it doesn’t belong, and who willfully retain it when there was a demand made by the government” to return it because they are not legally allowed to have it.

“So what President Trump is accused of is that part of the Espionage Act,” he said. “It’s irrelevant whether there was an intent to harm the United States or not. That’s not a defense to this charge. What the charge is, is he was unauthorized to have it, he willfully retained it. They demanded to have it back and he refused. That’s the crime.”

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